EXHIBIT 1.1
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CG1
UNDERWRITING AGREEMENT
As of June 18, 1998
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation
(the "Company"), proposes, subject to the terms and conditions stated
herein, to sell to the underwriters named in Schedule I hereto (the
"Underwriters"; provided, however, that if you are the only underwriter
named in Schedule I, then the terms "Underwriter" and "Underwriters"
shall refer solely to you) those classes (each, a "Class") of its
Commercial Mortgage Pass-Through Certificates, Series 1998-CG1, specified
in Schedule II hereto (the "Offered Certificates"). The Offered
Certificates will be issued pursuant to a Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement") to be dated as of June 1, 1998
(the "Cut-off Date"), among the Company, as depositor, GE Capital Loan
Services, Inc., as servicer (the "Servicer"), Midland Loan Services,
Inc., as special servicer (the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (in such capacity, the
"Trustee") and as REMIC administrator (in such capacity, the "REMIC
Administrator"). The Offered Certificates will evidence undivided
interests in a trust fund (the "Trust Fund") to be established by the
Company pursuant to the Pooling and Servicing Agreement. The Trust Fund
will consist primarily of a pool (the "Mortgage Pool") of conventional,
monthly pay, commercial and multifamily mortgage loans (the "Mortgage
Loans") transferred by the Company to the Trust Fund and listed in an
attachment to the Pooling and Servicing Agreement. Three real estate
mortgage investment conduit ("REMIC") elections are to be made with
respect to the Trust Fund with the resulting REMICs being referred to as
"REMIC I", "REMIC II" and "REMIC III", respectively. The Class B-4, Class
B-5, Class B-6, Class B-7, Class C, Class D-1, Class D-2, Class R-I,
Class R-II and Class R-III Certificates (collectively with the Offered
Certificates, the "Certificates") are also to be issued pursuant to the
Pooling and Servicing Agreement but do not form a part of this offering.
The Offered Certificates are described more fully in the Basic Prospectus
and the Prospectus Supplement (each of which terms is defined below)
which the Company is furnishing to you.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
333-32019) on Form S-3 for the registration under
the Securities Act of 1933, as amended (the "Act"), of the Offered
Certificates, which registration statement has become effective and copies of
which have heretofore been delivered to you. Such registration statement meets
the requirements set forth in Rule 415(a)(1) under the Act and complies in all
other material respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement, dated the date
specified in Schedule II hereto, to the prospectus, dated the date specified
in Schedule II hereto, relating to the Offered Certificates and the method of
distribution thereof and has previously advised you of all further information
(financial and other) with respect to the Offered Certificates set forth
therein. Such registration statement, including the exhibits thereto, as
amended at the date hereof is hereinafter called the "Registration Statement";
such prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter called the "Basic
Prospectus"; such supplement to the Basic Prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424 of the Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and
the Prospectus Supplement together are hereinafter called the "Prospectus".
Any preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 402(a) or Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement". The Company will not, without your prior consent, file
any other amendment to the Registration Statement or make any change in the
Basic Prospectus or the Prospectus Supplement until after the end of the
period during which a prospectus is required to be delivered to purchasers of
the Offered Certificates under the Act. The Company, as depositor with respect
to the Trust Fund, will file with the Commission within fifteen days of the
issuance of the Offered Certificates a report on Form 8-K setting forth
specific information concerning the Offered Certificates (the "Form 8-K").
(b) As of the date hereof, when the Registration
Statement became effective, when the Prospectus Supplement is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date, any
other amendment to the Registration Statement becomes effective, when any
supplement to the Prospectus Supplement is filed with the Commission, and
at the Closing Date, (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as amended or supplemented as of any such
time, complied or will comply in all material respects with the
applicable requirements of the Act and the rules thereunder, (ii) the
Registration Statement, as amended as of any such time, did not and will
not contain any untrue statement of a material fact and did not and will
not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the
Prospectus, as amended or supplemented as of any such time, did not and
will not contain an untrue statement of a material fact and did not and
will not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or
omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by you, or
by any Underwriter through you, specifically for use in the preparation
thereof, or (B) the information contained in or omitted from any Current
Report (as defined in Section 5(b) hereof), or any amendment thereof or
supplement thereto, incorporated by reference in the Registration
Statement or the Prospectus (or any amendment thereof or supplement
thereto).
(c) The Company is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with full power and authority (corporate and
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other) to own its properties and conduct its business, as described in the
Prospectus, and to enter into and perform its obligations under this Agreement
and the Pooling and Servicing Agreement, and is conducting its business so as
to comply in all material respects with all applicable statutes, ordinances,
rules and regulations of the jurisdictions in which it is conducting business.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) At or prior to the Closing Date, the Company will
have entered into the Pooling and Servicing Agreement; this Agreement has been
duly authorized, executed and delivered by the Company, and the Pooling and
Servicing Agreement, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company, and this Agreement and the
Pooling and Servicing Agreement will constitute valid and binding agreements
of the Company, enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, moratorium, receivership, reorganization or similar
laws affecting the rights of creditors generally, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability of any
provisions of this Agreement which purport to provide indemnification from
securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus; the Offered Certificates have been duly and
validly authorized by the Company, and will, when duly and validly executed
and authenticated by the Trustee and delivered to and paid for by the
Underwriters in accordance with this Agreement and the Pooling and Servicing
Agreement, be entitled to the benefits of the Pooling and Servicing Agreement.
(g) As of the Closing Date, the representations and
warranties of the Company set forth in Section 2.04 of the Pooling and
Servicing Agreement will be true and correct.
(h) Neither the issuance and sale of the Offered
Certificates, nor the consummation of any other of the transactions
contemplated herein, nor the fulfillment of any of the terms of the Pooling
and Servicing Agreement or this Agreement, will result in the breach of any
term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it is bound, or any statute, order or regulation
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company or any of its subsidiaries. Neither the Company nor any of its
subsidiaries is a party to, bound by or in breach 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
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jurisdiction over it, which materially and adversely affects the ability of
the Company to perform its obligations under this Agreement and the Pooling
and Servicing Agreement.
(i) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement or the Offered Certificates, (ii) seeking to prevent the issuance of
the Offered Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Pooling and Servicing Agreement, (iii)
which might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement or the Offered Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the Offered
Certificates described in the Prospectus.
(j) There has not been any material adverse change in
the business, operations, financial condition, properties or assets of the
Company since the date of its latest audited financial statements which would
have a material adverse effect on the ability of the Company to perform its
obligations under the Pooling and Servicing Agreement.
(k) There are no contracts, indentures or other documents of
a character required by the Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(l) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and
the Pooling and Servicing Agreement, except such as have been, or as of the
Closing Date will have been, obtained or such as may otherwise be required
under applicable state securities laws in connection with the purchase and
offer and sale of the Offered Certificates by the Underwriters and any
recordation of the respective assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not been completed.
(m) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company.
(n) Any taxes, fees and other governmental charges payable
by the Company in connection with the execution and delivery of this Agreement
and the Pooling and Servicing Agreement or the issuance and sale of the
Certificates (other than such federal, state and local taxes as may be payable
on the income or gain recognized therefrom) have been or will be paid at or
prior to the Closing Date.
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(o) Immediately prior to the assignment of the Mortgage
Loans to the Trustee, the Company will have good title to, and will be the
sole owner of, each Mortgage Loan, free and clear of any pledge, mortgage,
lien, security interest or other encumbrance.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal or
notional amount of each Class of the Offered Certificates set forth opposite
each such Underwriter's name in Schedule I hereto.
The purchase price for each Class of the Offered
Certificates as a percentage of the aggregate principal (or notional) amount
thereof as of the Closing Date (as defined below) is set forth in Schedule II
hereto. There will be added to the purchase price of the Offered Certificates
interest in respect of each Class of the Offered Certificates at the interest
rate applicable to such Class from the Cut-off Date to but not including the
Closing Date.
3. Delivery and Payment. The closing for the purchase and
sale of the Offered Certificates contemplated hereby (the "Closing"), shall be
made at the date, location and time of delivery set forth in Schedule II
hereto, or such later date as shall be mutually acceptable to the Underwriters
and the Company (such date and time of purchase and sale of the Offered
Certificates being herein called the "Closing Date"). Delivery of the Offered
Certificates will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each class of Offered Certificates will be
represented by one or more definitive global Certificates to be deposited by
or on behalf of the Depositor with DTC. Delivery of the Offered Certificates
shall be made to the several Underwriters against payment by the several
Underwriters of the purchase price thereof to or upon the order of the Company
by wire transfer of immediately available funds or by such other method as may
be acceptable to the Company.
The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by the Underwriters in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Offered Certificates for sale to the
public as set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will promptly advise the Underwriters (i)
when, during any period that a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission
for any amendment to the Registration Statement or the Prospectus or for any
additional information affecting or in respect of the Offered Certificates,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement affecting the Offered Certificates
or the institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will not file any amendment to the Registration Statement
or supplement to the Prospectus unless the Company has furnished you
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a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object until after the period
in which a prospectus is required to be delivered to purchasers of the Offered
Certificates under the Act. Subject to the foregoing sentence, the Company
will cause the Prospectus Supplement to be transmitted to the Commission for
filing pursuant to Rule 424 under the Act by means reasonably calculated to
result in filing with the Commission pursuant to said Rule. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to
the Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 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 later of (i) the day on which
such Computational Materials and Structural Term Sheets are delivered to
counsel for the Company by an Underwriter prior to 10:30 a.m. (New York City
time) and (ii) the date on which this Agreement is executed and delivered. The
Company will cause one Collateral Term Sheet (as defined in Section 9 below)
with respect to the Offered Certificates that is delivered by 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 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 the Underwriters prior
to 10:30 a.m. (New York City time). In addition, if at any time prior to the
availability of the Prospectus Supplement, the Underwriters have delivered to
any prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of the Underwriters and the Company, a material change
in the characteristics of the Mortgage Loans from those on which a Collateral
Term Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet
that is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to
10:30 a.m. (New York City time). In each case, the Company will promptly
advise the Underwriters when such Current Report has been so filed. Each such
Current Report shall be incorporated by reference in the Prospectus and the
Registration Statement. Notwithstanding the foregoing provisions of this
Section 5(b), the Company shall have no obligation to file any materials
provided by the Underwriters pursuant to Section 9 which, 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 9 below), or
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 the Underwriters to
the Company pursuant to Section 9 hereof. The Company shall give notice to the
Underwriters of its determination not to file any materials pursuant to the
preceding sentence and agrees to file such materials if the Underwriters
reasonably object to such determination within one business day after receipt
of such notice.
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(c) If, at any time when a prospectus relating to the
Offered 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 any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Act or the
rules under the Act, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance and, if such amendment or supplement is required
to be contained in a post-effective amendment to the Registration Statement,
will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible; provided, however, that
the Company will not be required to file any such amendment or supplement with
respect to any Computational Materials or ABS Term Sheets incorporated by
reference in the Prospectus other than any amendments or supplements of such
Computational Materials or ABS Term Sheets that are furnished to the Company
pursuant to Section 9 hereof which the Company determines to file in
accordance therewith.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer relating to the Offered
Certificates may be required by the Act, as many copies of the Basic
Prospectus, the Preliminary Prospectus Supplement, if any, and the Prospectus
Supplement and any amendments and supplements thereto as the Underwriters may
reasonably request.
(e) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will deliver or cause to be delivered to
the Underwriters the annual statements as to compliance and the annual
statements of a firm of independent public accountants, furnished to the
Trustee by the Master Servicer and the Special Servicer pursuant to Sections
3.13 and 3.14 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action that
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(g) The Company will pay all costs and expenses in
connection with the transactions contemplated hereby, including, but not
limited to, the fees and disbursements of its counsel; the costs and expenses
of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Offered Certificates; accounting fees and
disbursements; the costs and expenses in connection with the qualification or
exemption of the Offered Certificates under state securities or blue sky laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any Blue Sky
Survey and in connection with any determination of the eligibility of the
Offered Certificates for investment
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by institutional investors and the preparation of any Legal Investment Survey;
the expenses of printing any such Blue Sky Survey and Legal Investment Survey;
the costs and expenses in connection with the preparation, printing and filing
of the Registration Statement (including exhibits thereto), the Basic
Prospectus, the Preliminary Prospectus Supplement, if any, and the Prospectus
Supplement, the preparation and printing of this Agreement, the furnishing to
the Underwriters of such copies of each Preliminary Prospectus Supplement, if
any, and Prospectus Supplement as the Underwriters may reasonably request and
the fees of rating agencies. Except as provided in Section 7 hereof, the
Underwriters shall be responsible for paying all costs and expenses incurred
by them in connection with their purchase and sale of the Offered
Certificates, including the fees of counsel to any Underwriter.
6. Conditions to the Obligations to the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as
provided in this Agreement shall be subject to the accuracy in all material
respects of the representations and warranties on the part of the Company
contained herein as of the date hereof and the Closing Date, to the accuracy
in all material respects of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Company of its obligations hereunder and to the
following additional conditions with respect to the Offered Certificates:
(a) 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 threatened; and the Prospectus
Supplement shall have been filed with the Commission within the time period
prescribed by the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of
the Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date;
and (ii) the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect
to the Company a good standing certificate from the Secretary of State of
the State of Delaware, dated not earlier than 30 days prior to the
Closing Date.
(d) The Underwriters shall have received from the
Secretary or an assistant secretary of the Company, in his individual
capacity, a certificate, dated the Closing Date, to the effect that: (i)
each individual who, as an officer or representative of the Company,
signed this Agreement, the Pooling and Servicing Agreement or any other
document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein or in the Pooling
and Servicing Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates
are their genuine signatures; and (ii) no event (including, without
limitation, any act or omission on the part of the Company) has occurred
since the date of the good standing certificate referred to in paragraph
(c) above which has affected the good standing of the Company under the
laws of the State of Delaware. Such certificate shall be accompanied by
true and complete copies (certified as such by the Secretary or an
assistant secretary of the Company) of the certificate of
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incorporation and by-laws of the Company, as in effect on the Closing Date,
and of the resolutions of the Company and any required shareholder consent
relating to the transactions contemplated in this Agreement and the Pooling
and Servicing Agreement.
(e) The Underwriters shall have received from Sidley &
Austin, counsel for the Company, a favorable opinion, dated the Closing
Date and reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Registration Statement has become effective
under the 1933 Act.
(ii) To such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and not withdrawn, and no proceedings for that
purpose have been instituted or threatened and not terminated.
(iii) The Registration Statement, the Basic
Prospectus and the Prospectus Supplement, as of their respective
effective or issue dates (other than the financial statements,
schedules and other financial and statistical information
contained therein or omitted therefrom, as to which such counsel
need express no opinion), complied as to form in all material
respects with the applicable requirements of the Act and the
rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no
material contracts, indentures or other documents relating to
the Offered Certificates of a character required to be described
or referred to in the Registration Statement or the Prospectus
Supplement or to be filed as exhibits to the Registration
Statement, other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and
validly existing as a corporation in good standing under the
laws of the State of Delaware and has the requisite corporate
power and authority to enter into and perform its obligations
under this Agreement and the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling
and Servicing Agreement has been duly authorized, executed and
delivered by the Company.
(vii) Each of this Agreement and the Pooling
and Servicing Agreement constitutes a valid, legal and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be
limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors generally,
(B) general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law, and
(C) public policy considerations underlying the securities laws
to the extent that the same limit the enforceability of any
provisions of this Agreement that purport or are construed to
provide indemnification with respect to securities law
violations.
(viii) The Offered Certificates, when duly and
validly executed, authenticated and delivered in accordance with
the Pooling and Servicing Agreement and
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paid for in accordance with this Agreement, will be entitled to the
benefits of the Pooling and Servicing Agreement.
(ix) Neither the sale of the Offered
Certificates to the Underwriters pursuant to this Agreement nor
the consummation of any of the transactions contemplated by or
the fulfillment by the Company of the terms of this Agreement
and the Pooling and Servicing Agreement, will conflict with or
result in a breach or violation of any term or provision of the
certificate of incorporation or by-laws of the Company, or any
federal or State of New York statute or regulation, or any order
known to such counsel of any federal or State of New York court
or agency or other governmental body having jurisdiction over
the Company, except such counsel need express no opinion as to
compliance with the securities laws of the State of New York and
other particular States in connection with the purchase and the
offer and sale of the Offered Certificates by the Underwriters.
(xi) No consent, approval, authorization or
order of any federal or State of New York or Delaware court,
agency or other governmental body is required for the
consummation by the Company of the transactions contemplated by
the terms of this Agreement and the Pooling and Servicing
Agreement, except such as may be required under the securities
laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the
Offered Certificates by the Underwriters as to which such
counsel need express no opinion, and except such as have been
obtained.
(xii) The Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of
1939, as amended. The Trust Fund is not required to be
registered under the Investment Company Act of 1940, as amended.
(xiii) The statements set forth in the
Prospectus Supplement under the headings "Description of the
Certificates" and "Servicing of the Mortgage Loans" and in the
Basic Prospectus under the headings "Description of the
Certificates" and "Description of the Pooling Agreements",
insofar as such statements purport to summarize certain material
provisions of the Certificates and the Pooling and Servicing
Agreement, provide a fair and accurate summary of such
provisions.
(xiv) The statements set forth in each of the
Prospectus Supplement and the Basic Prospectus under the
headings "ERISA Considerations", "Certain Federal Income Tax
Consequences" and "Legal Investment", to the extent that they
purport to describe certain matters of federal law or legal
conclusions with respect thereto, while not discussing all
possible consequences of an investment in the Offered
Certificates to all investors, provide a fair and accurate
summary of such matters and conclusions set forth under such
headings.
(xv) As described in the Prospectus
Supplement, and assuming compliance with all the provisions of
the Pooling and Servicing Agreement, (A) REMIC I will qualify as
a real estate mortgage investment conduit (a "REMIC") within the
meaning of Sections 860A through 860G of the Internal Revenue
Code of 1986 in effect on the date hereof (the "REMIC
Provisions") and the REMIC I Regular Interests (as defined in
the Pooling and Servicing Agreement) will be "regular interests"
and the Class R-I Certificates will evidence the sole class of
"residual interests" in REMIC I (as both terms are defined in
the REMIC Provisions in effect on the Closing Date), (B) REMIC
II will qualify as a REMIC within the
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meaning of the REMIC Provisions, and the REMIC II Regular Interests
(as defined in the Pooling and Servicing Agreement) will be "regular
interests" and the Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II, and (C) REMIC III will
qualify as a REMIC within the meaning of the REMIC Provisions, and
the Class S, Class A-1A, Class A-1B, Class A-1C, Class A-2, Class
A-3, Class A-4, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7 and Class C Certificates will evidence
"regular interests" and the Class R-III Certificates will evidence
the sole class of "residual interests" in REMIC III.
(xvi) Assuming compliance with all the
provisions of the Pooling and Servicing Agreement, for City and
State of New York income and corporation franchise tax purposes: (A)
REMIC I, REMIC II and REMIC III will each be classified as a REMIC,
and not as a corporation, partnership or trust, in conformity with
the federal income tax treatment of REMIC I, REMIC II and REMIC III,
respectively; and (B) the Trust Fund will be exempt from all City
and State of New York taxation imposed on its income, franchise or
capital stock, and its assets will not be included in the
calculation of any City or State of New York franchise tax
liability.
Such opinion (x) may express its reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement and the
Pooling and Servicing Agreement, (y) may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the Company, and (z) may be
qualified as an opinion only on the law of the State of New York, the
federal law of the United States of America and the General Corporation
Law of the State of Delaware.
Based on such counsel's participation in conferences
with officers and other representatives of the Company and of the
Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Underwriters and their respective counsel, at which the contents of the
Registration Statement and the Prospectus were discussed and, although
such counsel need not pass upon or assume responsibility for the actual
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as stated in paragraphs
(xii) and (xiii) above) and need not make an independent check or
verification thereof for the purpose of rendering this opinion, on the
basis of the foregoing, such counsel shall also confirm that nothing has
come to the attention of such counsel that would lead such counsel to
believe that the Prospectus, as of the date of the Prospectus Supplement
and at the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (other than financial statements,
schedules and other numerical, financial and statistical data included
therein or omitted therefrom, the documents incorporated therein [oand
the information included therein or omitted therefrom relating to the
characteristics of the Mortgage Loans acquired by the Depositor from GE
Capital Access, Inc. ("GECA"; and such Mortgage Loans, the "GECA Mortgage
Loans")], as to which such counsel need express no opinion). Insofar as
questions of materiality are involved in the foregoing opinion, such
counsel may as to factual matters necessary to the determination of
materiality rely upon certificates and other information provided by
officers and other representatives to the Company and as to
determinations of materiality, may seek in the first instance and rely
where such counsel concludes such reliance is justifiable, on the view of
officers and other representatives of the Company.
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(f) The Underwriters shall have received from GECA's
counsel, a letter, dated the Closing Date, and reasonably satisfactory in
form and substance to counsel for the Underwriters, to the effect that,
based on such counsel's participation in conferences with officers and
other representatives of the Company, GECA and the Underwriters, at which
the contents of the Prospectus Supplement were discussed and, although
such counsel need not pass upon or assume responsibility for the actual
accuracy, completeness or fairness of the statements contained in the
Prospectus Supplement and need not make an independent check or
verification thereof for the purpose of rendering this opinion, that
nothing has come to the attention of such counsel that would lead such
counsel to believe that the Prospectus Supplement, as of the date of the
Prospectus Supplement and at the Closing Date, insofar as it relates to
the characteristics of the GECA Mortgage Loans, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than
financial statements, schedules and other numerical, financial and
statistical data included therein or omitted therefrom and the documents
incorporated therein, as to which such counsel need express no opinion).
Insofar as questions of materiality are involved in the foregoing
opinion, such counsel may as to factual matters necessary to the
determination of materiality rely upon certificates and other information
provided by officers and other representatives to GECA and as to
determinations of materiality, may seek in the first instance and rely
where such counsel concludes such reliance is justifiable, on the view of
officers and other representatives of GECA.
(g) The Underwriters shall have received, with respect
to each of the Servicer, the Special Servicer, the REMIC Administrator
and the Trustee, a favorable opinion of counsel, dated the Closing Date,
addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and
delivery of the Pooling and Servicing Agreement by such party and,
subject to the same limitations as set forth in Section 6(e)(vii), the
enforceability of the Pooling and Servicing Agreement against such party.
Such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of
parties to, this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion may assume the
due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party
on behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the General Corporation Law of the State
of Delaware (if relevant), the laws of each state in which the writer of
the opinion is admitted to practice law and the federal law of the United
States.
(h) The Underwriters shall have received from Xxxxxx
Xxxxxxxx & Co., certified public accountants, a letter dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters stating in effect that using the assumptions
and methodology used by the Company, all of which shall be described in
such letter, they have recalculated such numbers and percentages set
forth in the Prospectus as the Underwriters may reasonably request and as
are agreed to by Xxxxxx Xxxxxxxx & Co., compared the results of their
calculations to the corresponding items in the Prospectus, and found each
such number and percentage set forth in the Prospectus to be in agreement
with the results of such calculations.
(i) The Offered Certificates listed on Schedule II
hereto shall have been rated as indicated on such Schedule by the rating
agency or agencies indicated.
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(j) All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto and
thereto, shall be satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, and the Underwriters and counsel for
the Underwriters shall have received such additional information,
certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and as
provided by this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
by either telegraph or telecopier confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale
of any Offered Certificates provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 6 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or
therein or comply with any provision hereof or thereof, other than by
reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase
and sale of such Offered Certificates.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
the Act or the Exchange Act of 1934, as amended (the "Exchange Act"), against
claims, damages, or liabilities, joint or several, to which such Underwriter
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 any part of the Registration
Statement when such part became effective, or in the Registration Statement,
any Preliminary Prospectus Supplement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials or ABS Term Sheets (as
defined in Section 9 below) in respect of which the Company agrees to
indemnify any Underwriter or any such controlling person, as set forth below,
when such are read in conjunction with the Prospectus) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and
each such controlling person for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such
loss, claim, damage, liability, or action; provided, however, that (i) the
Company shall 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 an untrue statement
or alleged untrue statement or omission or alleged omission made (A) therein
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter directly or through another Underwriter
specifically for use in the preparation thereof or (B) in any Current Report
or any amendment or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein or omission therefrom results
(or is alleged to have resulted) directly from an error (a "Collateral Error")
in the information concerning the characteristics of the Mortgage Loans
-18-
furnished by the Company to an Underwriter in writing or by electronic
transmission that was used in the preparation of either (x) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) or (y) any
written or electronic materials furnished to prospective investors on which
the Computational Materials (or amendments or supplements) were based, (ii)
such indemnity with respect to any Preliminary Prospectus Supplement shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Certificates which are the subject thereof if
such person did not receive a copy of the Prospectus (or the Prospectus as
amended or supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in such
Preliminary Prospectus Supplement was corrected in the Prospectus (or the
Prospectus as amended or supplemented) and (iii) such indemnity with respect
to any Collateral Error shall not inure to the benefit of any Underwriter
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials or ABS Term
Sheets (or any written or electronic materials on which the Computational
Materials are based) that were prepared on the basis of such Collateral Error,
if, prior to the time of confirmation of the sale of the applicable Offered
Certificates to such person, the Company notified such Underwriter in writing
of the Collateral Error or provided in written or electronic form information
superseding or correcting such Collateral Error (in any such case, a
"Corrected Collateral Error"), and such Underwriter failed to notify such
person thereof or to deliver to such person corrected Computational Materials
(or underlying written or electronic materials) or ABS Term Sheets. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to (A) written information relating to such
Underwriter furnished to the Company by such Underwriter directly or through
another Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity, or (B) any Computational Materials or
ABS Term Sheets (or amendments or supplements thereof) delivered to
prospective investors by such Underwriter and furnished to the Company by such
Underwriter pursuant to or as contemplated by Section 9 and incorporated by
reference in the Registration Statement or the Prospectus 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 any Collateral Error, other than a Corrected Collateral Error).
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page and under the heading
"Method of Distribution" in any Preliminary Prospectus Supplement or the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity (other than any Computational Materials or ABS Term
Sheets furnished to the Company by any Underwriter), and you confirm that such
statements are correct. Any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) furnished to the Company by a particular
Underwriter shall relate exclusively to and be the several responsibility of
such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be
-19-
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 8. In
case any such action is brought against any indemnified party, and it notifies
the 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 (which may be
counsel representing the indemnifying party); provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by you in the case of
paragraph (a) of this Section 8, representing the indemnified parties under
such paragraph (a) who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the
losses, claims, damages, or liabilities referred to in paragraph (a) or (b)
above as follows:
(i) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which do not
arise out of or are not based upon any untrue statement or
omission of a material fact in any Computational Materials or
ABS Term Sheets (or any amendments or supplements thereof) in
such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase
price of the Offered Certificates specified in Schedule I hereto
and the Company is responsible for the balance; provided,
however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the
offering of the Offered Certificates) be responsible under this
subparagraph (i) for any amount in excess of the underwriting
discount applicable to the Offered Certificates purchased by
such Underwriter hereunder; and
(ii) in the case of any losses, claims,
damages and liabilities (or actions in respect thereof) which
arise out of or are based upon any untrue statement or omission
of a material fact in any Computational Materials or ABS Terms
Sheets (or any amendments or
-20-
supplements thereof) or in any written or electronic materials on
which the Computational Materials are based, in such proportion as
is appropriate to reflect the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the
statement or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as
any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact in such
Computational Materials or ABS Term Sheets (or any amendments or
supplements thereof or such written or electronic materials) results
from information prepared by the Company on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding anything to the contrary in this
paragraph (d), 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 8, each person who
controls an Underwriter within the meaning of the Act shall have the same
rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding
sentence of this paragraph (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
paragraph (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 other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Computational Materials and ABS Term Sheets. (a) Not
later than 10:30 a.m., New York City time, on the date hereof, the
Underwriters shall deliver to the Company and its counsel, as provided
below, a complete copy of all materials provided by the Underwriters to
prospective investors in the Offered Certificates which constitute either
(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") or (ii) "ABS Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and together with the Xxxxxx Letters, the
"No-Action Letters"), if the filing of such materials with the Commission
is a condition of the relief granted in such letters and, in the case of
any such materials that constitute "Collateral Term Sheets" within the
meaning of the PSA Letter, such Collateral Term Sheets have not
previously been delivered to the Company as contemplated by Section
9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company and its
counsel pursuant to this paragraph (a) shall be made in paper form and,
in the case of ABS Term Sheets, electronic format suitable for filing
with the Commission.
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(b) Each underwriter represents and warrants to and
agrees with the Company, as of the date hereof and as of the Closing
Date, as applicable, that:
(i) if such Underwriter has provided any
Collateral Term Sheets to potential investors in the Offered
Certificates prior to the date hereof and if the filing of such
materials with the Commission is a condition of the relief
granted in the PSA Letter, then in each such case such
Underwriter delivered to the Company and its counsel, in the
manner contemplated by Section 9(a), a copy of such materials no
later than 10:30 a.m., New York City time, on the first business
day following the date on which such materials were initially
provided to a potential investor;
(ii) the Computational Materials (either in
original, aggregated or consolidated form) and ABS Term Sheets
furnished to the Company pursuant to Section 9(a) or as
contemplated in Section 9(b)(i) constitute all of the materials
relating to the Offered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to
prospective investors in the Offered Certificates prior to the
date hereof, except for any preliminary prospectus with respect
to the Offered Certificates and any Computational Materials and
ABS Term Sheets with respect to the Offered Certificates which
are not required to be filed with the Commission in accordance
with the No-Action Letters, and all Computational Materials and
ABS Term Sheets provided by such Underwriter to potential
investors in the Offered Certificates comply with the
requirements of the No-Action Letters;
(iii) on the respective dates any such
Computational Materials and/or ABS Term Sheets with respect to
the Offered Certificates referred to in Section 9(b)(ii) were
last furnished by such Underwriter to each prospective investor,
on the date of delivery thereof to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, such
Computational Materials and/or ABS Term Sheets did not and will
not include any untrue statement of a material fact, or, when
read in conjunction with the Prospectus, omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading;
(iv) at the time any Computational Materials
or ABS Term Sheets with respect to the Offered Certificates were
furnished to a prospective investor and on the date hereof, the
Underwriters possessed, and on the date of delivery of such
materials to the Company pursuant to or as contemplated by this
Section 9 and on the Closing Date, the Underwriters will
possess, the capability, knowledge, expertise, resources and
systems of internal control necessary to ensure that such
Computational Materials and/or ABS Term Sheets conform to the
representations and warranties of the Underwriters contained in
subparagraphs (ii) and (iii) above of this paragraph (b);
(v) all Collateral Term Sheets with respect to
the Offered Certificates furnished by such Underwriter to
potential investors contained and will contain a legend,
prominently displayed on the first page thereof, indicating that
the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus
and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior
Collateral Term Sheets; and
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(vi) on and after the date hereof, such
Underwriter shall not deliver or authorize the delivery of any
Computational Materials, ABS Term Sheets or other materials
relating to the Offered Certificates (whether in written,
electronic or other format) to any potential investor unless
such potential investor has received a Prospectus prior to or at
the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials.
Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials or
ABS Term Sheets with respect to the Offered Certificates included or will
include any untrue statement resulting directly from any Collateral Error
(except any Corrected Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from the Company of notice
of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the
Company has not authorized and will not authorize the distribution of any
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates to any prospective investor. The Underwriters agree that
they will not represent to potential investors that any Computational
Materials and/or ABS Term Sheets with respect to the Offered Certificates
were prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, it shall
be necessary in the opinion of the Underwriters or their counsel to amend
or supplement the Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this
Section 9 or the omission to state a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or
necessary to make the statements therein, when read in conjunction with
the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules
thereunder, the Underwriters, at their expense (such expense to be
allocated between them based on the relative fault of the Underwriters)
(or, if such amendment or supplement is necessary due to a Collateral
Error (except any Corrected Collateral Error, with respect to materials
prepared after the receipt by the Underwriters from the Company of notice
of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error), at the expense of the Company), shall
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 and shall distribute such
amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or
supplemented. Each Underwriter represents and warrants to the Company, as
of the date of delivery of such amendment or supplement to the Company,
that such amendment or supplement will not include any untrue statement
of a material fact or, when read in conjunction with the Prospectus, omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. 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 Prospectus, 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 the Underwriters to the Company pursuant to this paragraph (d)) or
(ii) such filing is not required under the Act. Each Underwriter
represents and warrants to the Company,
-23-
as of the date of delivery of such amendment or supplement to the Company,
that such amendment or supplement will not include any untrue statement of a
material fact or, when read in conjunction with the Prospectus, omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading. Notwithstanding the foregoing, none of the
Underwriters make any representation or warranty as to whether any such
amendment or supplement of Computational Materials or ABS Term Sheets with
respect to the Offered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(e) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, it shall
be necessary in the opinion of the Company or its counsel to amend or
supplement the Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials or ABS Term Sheets
provided by the Underwriters pursuant to or as contemplated by this
Section 9 or the omission to state therein a material fact required, when
considered in conjunction with the Prospectus, to be stated therein or
necessary to make the statements therein, when read in conjunction with
the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules
thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters, at their
expense (such expense to be allocated between them based on the relative
fault of the Underwriters) (or, if such amendment or supplement is
necessary due to a Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral
Error), at the expense of the Company), shall 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 and shall distribute such amendment or supplement to each
prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents
and warrants to the Company, as of the date of delivery of such amendment
or supplement to the Company, that such amendment or supplement will not
include any untrue statement of a material fact or, when read in
conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Notwithstanding the foregoing, none of the Underwriters make
any representation or warranty as to whether any such amendment or
supplement of Computational Materials or ABS Term Sheets with respect to
the Offered Certificates included or will include any untrue statement
resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by
the Underwriters from the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral
Error).
(f) The Underwriters (at their own expense) further
agree to provide to the Company any accountants' letters obtained
relating to the Computational Materials and/or ABS Term Sheets, which
accountants' letters shall be addressed to the Company or shall state
that the Company may rely thereon; provided that the Underwriters shall
have no obligation to procure any such letter.
10. Substitution of Underwriters. (a) If any
Underwriter shall fail to take up and pay for the amount of the Offered
Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Offered Certificates in accordance with
the terms hereof, and the
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amount of the Offered Certificates not purchased does not aggregate more than
10% of the total amount of the Offered Certificates set forth in Schedule I
hereof, the remaining Underwriters shall be obligated to take up and pay for
the Offered Certificates that the withdrawing or defaulting Underwriter agreed
but failed to purchase.
(b) If any Underwriter shall fail to take up and pay
for the amount of the Offered Certificates agreed by such Underwriter to
be purchased under this Agreement (such Underwriter being a "Defaulting
Underwriter"), upon tender of such Offered Certificates in accordance
with the terms hereof, and the amount of the Offered Certificates not
purchased aggregates more than 10% of the total amount of the Offered
Certificates set forth in Schedule I hereto, and arrangements
satisfactory to the remaining Underwriters and the Company for the
purchase of such Certificates by other persons are not made within 36
hours thereafter, this Agreement shall terminate. In the event of any
such termination the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g) and Section 8
hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed, otherwise than for some reason permitted under this
Agreement, to purchase the amount of the Offered Certificates such
Underwriter agreed to purchase hereunder) be under any liability to the
Company (except to the extent provided in Sections 8 and 9 hereof).
Nothing herein shall be deemed to relieve any Defaulting Underwriter from
any liability it may have to the Company or any other Underwriter by
reason of its failure to take up and pay for Offered Certificates as
agreed by such Defaulting Underwriter.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters by notice
given to the Company prior to delivery of and payment for all Offered
Certificates if prior to such time (i) trading in securities of the
Company or any affiliate on the New York Stock Exchange shall have been
suspended or limited, or minimum prices shall have been established on
such Exchange, (ii) a banking moratorium shall have been declared by
either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment of the
Underwriters, impractical to market the Offered Certificates.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Offered Certificates. The provisions of
Sections 7, 8 and 9 hereof shall survive the termination or cancellation
of this Agreement.
13. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Underwriters,
will be mailed, delivered or either telegraphed or transmitted by
telecopier and confirmed to them at the addresses set forth on Schedule I
hereto; or, if sent to the Company will be mailed, delivered or either
telegraphed or transmitted by telecopier and confirmed to it at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: N. Xxxxx XxXxxxx,
with a copy to Sidley & Austin, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxx.
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14. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred
to in Section 8 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder.
15. Applicable Law; Counterparts. This Agreement will
be governed by and construed in accordance with the substantive laws of
the State of New York applicable to agreements made and to be performed
entirely in said State. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall together constitute but one and the same
instrument.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/
-----------------------------------
Name:
Title:
Accepted at New York, New York
as of the date first written
above.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/
---------------------------------
Name:
Title:
SCHEDULE I
Principal or Notional
Amount of Relevant
Underwriter Class of Offered
(and address) Class Certificates to be Purchased
------------- ----- ----------------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation* Class S $1,564,253,441
000 Xxxx Xxxxxx Class A-1A 291,005,000
Xxx Xxxx, Xxx Xxxx 00000 Class A-1B 835,257,000
Attention: N. Xxxxx XxXxxxx Class A-1C 39,106,000
Class A-2 39,106,000
Class A-3 78,213,000
Class A-4 23,464,000
Class B-1 70,391,000
Class B-2 23,464,000
Class B-3 15,643,000
-----------------
* Only Underwriter
** Notional Amount
SCHEDULE II
Registration Statement No. 333-32019
Basic Prospectus dated June 15, 1998
Prospectus Supplement dated June 18, 1998
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 1998-CG1, Class S,
Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class A-3, Class A-4,
Class B-1, Class B-2 and Class B-3
Cut-off Date: June 1, 1998
Closing: 10:00 a.m. on June 24, 1998
at the offices of
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Initial
Aggregate Principal
(or, in the case of
Class S
Certificates, Notional) Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating(3)
----------------- ------------------ ----------------- ----------------- ---------
Class S $1,564,253,441 0.0785%(4) 4.9614000% AAA/AAAr
Class A-1A $ 291,005,000 6.1100% 99.875000% AAA/AAA
Class A-1B $ 835,257,000 6.4100% 101.000000% AAA/AAA
Class A-1C $ 39,106,000 6.4600% 101.015625% AAA/AA+
Class A-2 $ 39,106,000 6.5100% 101.031250% AA/AA
Class A-3 $ 78,213,000 6.6500% 101.046875% A/A
Class A-4 $ 23,464,000 6.7600% 100.984375% A/A-
Class B-1 $ 70,391,000 6.9100% 101.046875% BBB/BBB
Class B-2 $ 23,464,000 7.1503%(4) 100.593750% BBB/BBB-
Class B-3 $ 15,643,000 7.1503%(4) 98.828125% BBB-/NR
-------------------
(1) Subject to a variance of plus or minus 5%
(2) Expressed as a percentage of the aggregate stated or notional
amount, as applicable, of the relevant class of Offered
Certificates to be purchased. The purchase price for each class
of the Offered Certificates will include accrued interest at the
initial Pass-Through Rate therefor on the aggregate stated or
notional amount, as applicable, thereof to be purchased from the
Cut-off Date to but not including the Closing Date.
(3) By each of Fitch IBCA, Inc. and Standard & Poor's Ratings Services,
a Division of the XxXxxx-Xxxx Companies, Inc.
(4) Approximate.
