COMMERCIAL MORTGAGE ACCEPTANCE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES ________, CLASS A, CLASS B AND CLASS [ ]
UNDERWRITING AGREEMENT
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_____________, 19__
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Ladies and Gentlemen:
Commercial Mortgage Acceptance Corp., a Missouri corporation (the
"Company"), proposes to issue and sell, pursuant to the terms of this
Underwriting Agreement (this "Underwriting Agreement") to
_______________________, as underwriter (the "Underwriter"), the Commercial
Mortgage Acceptance Corp. Commercial Mortgage Pass- Through Certificates, Series
[___________], Class A, Class B and Class [__] (collectively, the "Offered
Securities") having the respective initial aggregate approximate Certificate
Balances set forth on Schedule I hereto, each Certificate evidencing an
undivided beneficial ownership interest in a separate trust fund (the "Trust
Fund"), the property of which is primarily comprised of a pool (the "Mortgage
Pool") of [____ fixed-rate] mortgage loans and [____ variable rate] mortgage
loans with original terms to maturity of not more than [__________] years (the
"Mortgage Loans"), secured by first [or junior] liens on fee simple or leasehold
interests in commercial real estate properties, multifamily residential
properties and/or mixed residential/commercial properties (the "Mortgaged
Properties"). The Mortgaged Properties consist of [multifamily residential
housing,] [nursing homes,] [congregate care facilities,] [retail properties,]
[office buildings,] [self-storage facilities,] [light industrial/industrial
properties,] [warehouses,] [hotels,] [mobile home parks] and [mixed use
properties].
The sale of the Offered Securities is to occur simultaneously with the
separate offering of Commercial Mortgage Acceptance Corp. Commercial Mortgage
Pass-Through Certificates, Series [________], Class [C], Class [___], Class R
and Class LR (the "Privately Placed Certificates"), which are being issued
pursuant to the Private Placement Memorandum, dated _________, 199__ (the
"Memorandum") and sold to ______________________, as placement agent (in such
capacity, the "Placement Agent") pursuant to a Certificate Purchase Agreement,
dated __________, 199__ (the "Certificate Purchase Agreement"). The Offered
Securities and the Privately Placed Certificates are collectively referred to
herein as the Certificates.
The Trust Fund will be established pursuant to an agreement (the "Pooling
and Servicing Agreement") to be dated as of _________, 199_, by and among the
Company, as depositor, Midland Loan Services, L.P., as servicer (the "Master
Servicer"), [____________________, as special servicer (the "Special
Servicer"),] _________________, as trustee (the "Trustee"), and
_____________________, as fiscal agent (the "Fiscal Agent")].
The Mortgage Loans will be purchased by the Company from
___________________ (the "Mortgage Loan Seller"), a ___________ corporation,
pursuant to a Mortgage Loan Purchase and Sale Agreement to be dated as of
____________, 199_ (the "Mortgage Loan Purchase and Sale Agreement"), among the
Mortgage Loan Seller, [the Master Servicer] and the Company and will be
transferred to the Trustee, for the benefit of the Certificateholders, in
exchange for the Certificates.
[Insert Information regarding determination of
Purchase Price]
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Offering by the Underwriter. Upon the execution of this Underwriting
Agreement and the authorization by the Underwriter of the release of the Offered
Securities, the Underwriter proposes to offer for sale to the public the Offered
Securities at the price and upon the terms set forth in the Final Prospectus (as
hereinafter defined).
2. Conditions of the Underwriter's Obligations. The obligation of the
Underwriter hereunder to purchase the Offered Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof and as of the Closing Date, to the
accuracy of the statements of the Company, the Master Servicer [and the Special
Servicer], made in any certificate pursuant to the provisions hereof, to the
performance by the Company in all material respects of its obligations hereunder
and to the following additional conditions:
(a) All actions required to be taken and all filings required to be
made by or on behalf of the Company under the Securities Act of 1933, as
amended (the "1933 Act"), and the Securities Exchange Act of 1934, as
amended (the "1934 Act"), prior to the sale of the Offered Securities shall
have been duly taken or made.
(b) The Underwriter shall have received on the Closing Date an
Officer's Certificate of the Company, dated the Closing Date, to the effect
that: (i) no stop order suspending the effectiveness of the Company's
registration statement (Registration No. [333-_________]) (the
"Registration Statement") shall be in effect, (ii) no proceedings for such
purpose shall be pending before or threatened by the Securities and
Exchange Commission (the "Commission"), or by any authority administering
any state securities or "Blue Sky" laws, (iii) any requests for additional
information on the part of the Commission shall have been complied with to
the
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Underwriter's reasonable satisfaction, (iv) since the respective dates as
of which information is given in the Registration Statement, the
Prospectus, dated __________, 199_ (the "Prospectus") and the Prospectus
Supplement, dated ___________, 199_ (the "Prospectus Supplement"; together
with the Prospectus, the "Final Prospectus") and except as otherwise stated
therein, there shall have been no material adverse change in the condition,
financial or otherwise, earnings, affairs, regulatory situation or business
prospects of the Company, (v) there are no material actions, suits or
proceedings pending (or, to the best knowledge of the Company, threatened)
before any court or governmental agency, authority or body, affecting the
Company or the transactions contemplated by this Underwriting Agreement and
(vi) the Company is not in violation of its Articles of Incorporation, as
amended, or its by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
pooling and servicing agreement, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or its
properties may be bound, which violations or defaults separately or in the
aggregate would have a material adverse effect on the Company.
(c) Subsequent to the execution of this Underwriting Agreement, there
shall not have occurred any of the following: (i) if at or prior to the
Closing Date, trading in securities on the New York Stock Exchange, London
Stock Exchange or Tokyo Stock Exchange shall have been suspended or any
material limitation in trading in securities generally shall have been
established on such exchange, or a banking moratorium shall have been
declared by New York or United States authorities or (ii) if at or prior to
the Closing Date, there shall have been an outbreak of hostilities between
the United States and any foreign power, or of any other insurrection or
armed conflict involving the United States which results in the declaration
of a national emergency or war, and, in the reasonable opinion of the
Underwriter, makes it impracticable or inadvisable to offer or sell the
Offered Securities.
(d) The Underwriter shall have received written notification from each
of [insert Rating Agencies rating the transaction] to the effect that the
Offered Securities have been rated no lower than the required ratings set
forth in Schedule I hereto, and as of the Closing Date, such rating or
ratings shall not have been rescinded and there shall not have been any
downgrading, or public notification of a possible downgrading, or public
notification of a possible change without indication of direction.
(e) The Offered Securities, the Mortgage Loan Purchase and Sale
Agreement, the Pooling and Servicing Agreement and this Underwriting
Agreement shall have been duly authorized, executed and delivered by the
respective parties thereto and shall be in full force and effect.
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(f) The Company shall have delivered to the Underwriter an Officer's
Certificate of the Company, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Prospectus Supplement
and this Agreement and 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, (ii) the Company has 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 and (iii) nothing has come to the attention of the signer
that would lead the signer to believe that the Prospectus Supplement
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that no such representation or warranty
shall be required as to statements contained in or omitted from the
Prospectus Supplement in reliance upon and in conformity with information
furnished in writing (including electronic media) to the Company by the
Underwriter specifically for use in the Prospectus Supplement.
(g) The Master Servicer shall have delivered to the Underwriter an
Officer's Certificate of the general partner of the Master Servicer, dated
the Closing Date, to the effect that (i) the signer of such certificate has
carefully examined the Prospectus Supplement and that nothing has come to
the attention of the signer that would lead the signer to believe that the
statements in the Prospectus Supplement relating to the Master Servicer
contain 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 the light of the circumstances under which they
were made, not misleading and (ii) all of the Master Servicer's
representations and warranties contained in the Pooling and Servicing
Agreement are true and correct as if made on the Closing Date.
(h) [The Special Servicer shall have delivered to the Underwriter an
Officer's Certificate of the Special Servicer, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined the
Prospectus Supplement and that nothing has come to the attention of the
signer that would lead the signer to believe that the statements in the
Prospectus Supplement relating to the Special Servicer contain 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
the light of the circumstances under which they were made, not misleading,
except that no such representation or warranty shall be required as to
statements contained in or omitted from the Prospectus Supplement in
reliance upon and in conformity with information furnished in writing to
the Company by the Underwriter specifically for use in the Prospectus
Supplement and any amendment or supplement thereto.]
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(i) The Underwriter shall have received from Xxxxxxxx & Xxxxxx L.L.P.,
counsel to the Company, a favorable opinion, dated the Closing Date, and
satisfactory in form and substance to counsel for the Underwriter. With
respect to such opinion, such counsel (a) may express its reliance as to
factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers of, the parties to
this Underwriting Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase and Sale Agreement, (b) 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 the
Master Servicer and (c) may render such opinion only as to the federal laws
of the United States of America and the laws of the State of
------------.
(j) The Underwriter shall have received from ________________________,
counsel to the Underwriter, such opinion, dated the Closing Date, with
respect to the issuance and sale of the Offered Securities, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase and Sale Agreement, this
Underwriting Agreement, the Final Prospectus and other related matters as
the Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(k) The Underwriter shall have received from ______________________,
certified public accountants, a letter dated the date hereof and
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, to the effect that such accountants have performed certain
specified procedures as a result of which they confirmed certain
information of an accounting, financial or statistical nature set forth in
the Final Prospectus.
(l) The Underwriter shall have received from Xxxxxxxx & Xxxxxx L.L.P.,
counsel to the Master Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter, to the effect that the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Master Servicer and
constitutes the legal, valid, binding and enforceable agreement of the
Master Servicer, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights in general and by general principles of equity regardless of whether
enforcement is considered in a proceeding in equity or at law, and as to
such other matters as may be agreed upon by the Underwriter and the Master
Servicer. With respect to such opinion, such counsel (a) may express its
reliance as to factual matters on the representations and warranties made
by, and on certificates or other documents furnished by officers of the
parties to the Pooling and Servicing Agreement, (b) may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Master Servicer
and (c) may render such opinion only as to the laws of the State of
_____________ and the federal laws of the United States of America.
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(m) [The Underwriter shall have received from _______________________,
counsel to the Special Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter, to the effect that the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Special Servicer and
constitutes the legal, valid, binding and enforceable agreement of the
Special Servicer, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights in general and by general principles of equity regardless of whether
enforcement is considered in a proceeding in equity or at law, and as to
such other matters as may be agreed upon by the Underwriter and the Special
Servicer. With respect to such opinion, such counsel (a) may express its
reliance as to factual matters on the representations and warranties made
by, and on certificates or other documents furnished by officers of the
parties to the Pooling and Servicing Agreement, (b) may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Special Servicer
and (c) may render such opinion only as to the laws of the State of
____________ and the federal laws of the United States of America.]
(n) The Underwriter shall have received from ________________________,
counsel to the Mortgage Loan Seller, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter, to the effect that the Mortgage Loan Purchase and Sale
Agreement has been duly authorized, executed and delivered by the Mortgage
Loan Seller and constitutes the legal, valid, binding and enforceable
agreement of the Mortgage Loan Seller, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by the
Underwriter and the Mortgage Loan Seller. With respect to such opinion,
such counsel (a) may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by officers of the parties to the Pooling and Servicing
Agreement and the Mortgage Loan Purchase and Sale Agreement, (b) may assume
the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the
Mortgage Loan Seller and (c) may render such opinion only as to the laws of
the State of ___________ and the federal laws of the United States of
America.
(o) The Underwriter shall have received from [ ], counsel to the
Trustee, a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriter and counsel for the Underwriter, to the
effect that the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes the legal, valid,
binding and enforceable agreement of the Trustee, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights in general
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and by general principles of equity regardless of whether enforcement is
considered in a proceeding in equity or at law, and as to such other
matters as may be agreed upon by the Underwriter and the Trustee.
(p) [The Underwriter shall have received from [ ], counsel to the
Fiscal Agent, a favorable opinion dated the Closing Date, in form and
substance satisfactory to the Underwriter and counsel for the Underwriter,
to the effect that the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Fiscal Agent and constitutes the
legal, valid, binding and enforceable agreement of the Fiscal Agent,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights in general and
by general principles of equity, regardless of whether enforcement is
considered in a proceeding in equity or at law, and as to such other
matters as may be agreed upon by the Underwriter and the Fiscal Agent.]
(q) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Underwriter and counsel for the Underwriter, and
the Underwriter and such counsel shall have received such information,
certificates and documents as the Underwriter or such counsel may have
reasonably requested.
(r) The Underwriter shall have received a copy of the Letter of
Representations of the Company to The Depository Trust Company with respect
to the Offered Securities.
(s) All conditions to the obligation of the Placement Agent pursuant to
Section 4 of the Certificate Purchase Agreement shall have been satisfied.
(t) The Company shall have furnished such further information,
certificates, documents and opinions as the Underwriter may reasonably
request.
If any of the conditions specified in this Section 2 shall not have been
fulfilled in all material respects when and as provided in this Underwriting
Agreement, if the Company is in breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Underwriting Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Underwriting Agreement and all obligations of the Underwriter
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriter.
3. Covenants of the Company. In further
consideration of the agreements of the Underwriter
contained in this Underwriting Agreement, the Company
covenants as follows:
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(a) The Company shall furnish the Underwriter, without charge, copies
of the Registration Statement and any amendments thereto including exhibits
and as many copies of the Final Prospectus and any supplements and
amendments thereto as the Underwriter may from time to time reasonably
request.
(b) The Company will not file any amendment to the Registration
Statement or any supplement to the Prospectus of which the Underwriter
shall not previously have been advised and furnished with a copy a
reasonable time prior to the proposed filing or to which the Underwriter
shall have reasonably objected. The Company will use its best efforts to
cause any post-effective amendment to the Registration Statement to become
effective as promptly as possible. During the time when a prospectus is
required to be delivered under the 1933 Act, the Company will comply so far
as it is able with all requirements imposed upon it by the 1933 Act and the
rules and regulations thereunder to the extent necessary to permit the
continuance of sales or of dealings in the Offered Securities in accordance
with the provisions hereof and of the Final Prospectus, and the Company
will prepare and file with the Commission, promptly upon request by the
Underwriter, any amendments to the Registration Statement or amendments or
supplements to the Prospectus which may be necessary or advisable in
connection with the distribution of the Offered Securities by the
Underwriter, and will use its best efforts to cause the same to become
effective as promptly as possible. The Company will advise the Underwriter,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement or any amended Registration Statement has
become effective or any amendment or supplement to the Final Prospectus or
any amended Prospectus has been filed. The Company will advise the
Underwriter, promptly after it receives notice or obtains knowledge
thereof, of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary prospectus supplement or the Final
Prospectus, or the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceeding for any such purpose, or of any request
made by the Commission for the amending or supplementing of the
Registration Statement or the Final Prospectus or for additional
information, and the Company will use its best efforts to prevent the
issuance of any such stop order or any order suspending any such
qualification, and if any such order is issued, to obtain the lifting
thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event occurs
as a result of which the Final Prospectus would 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, in the
light of the circumstances under which they were made, not misleading, or
if it is necessary for any other reason to amend or supplement the Final
Prospectus to comply with the 1933 Act, to promptly notify the Underwriter
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thereof and upon the Underwriter's request to prepare and file with the
Commission, at the Company's own expense, an amendment or supplement which
will correct such statement or omission or any amendment which will effect
such compliance.
(d) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Offered Securities pursuant to
this Underwriting Agreement, the Company will file, on a timely and
complete basis, all documents that are required to be filed by the Company
with the Commission pursuant to Sections 13, 14 or 15(d) of the 1934 Act.
(e) The Company shall qualify the Offered Securities for offer and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Underwriter shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such qualification of
the eligibility of the Offered Securities for investment under the laws of
such jurisdictions as the Underwriter may designate; provided that in
connection therewith the Company shall not be required to qualify to do
business or to file a general consent to service of process in any
jurisdiction.
(f) For so long as any of the Offered Securities remain outstanding, to
furnish to the Underwriter upon request in writing copies of such financial
statements and other periodic and special reports as the Company may from
time to time distribute generally to its creditors or the holders of the
Offered Securities and to furnish to the Underwriter copies of each annual
or other report the Company shall be required to file with the Commission.
(g) To the extent, if any, that the rating provided with respect to the
Offered Securities by the rating agency or agencies that initially rate the
Offered Securities is conditional upon the furnishing of documents or the
taking of any other actions by the Company, the Company shall use its best
efforts to furnish such documents and take any such other actions.
(h) The Company will enter into the Mortgage Loan Purchase and Sale
Agreement and the Pooling and Servicing Agreement on or prior to the
Closing Date.
4. Representations and Warranties of the Company.
The Company represents and warrants to the Underwriter
that:
(a) The Registration Statement on Form S-3 (No.
333-_________) including the Prospectus, has become
effective. No stop order suspending the
effectiveness of such Registration Statement has been
issued and no proceeding for that purpose has been
initiated or, to the best knowledge of the Company,
threatened by the Commission. The Prospectus
Supplement will be filed with the Commission pursuant
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to Rule 424 under the 1933 Act. The conditions to the use of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions on Form S-3, and the conditions of Rule 415 under the 1933
Act, have been satisfied with respect to the Company and the Registration
Statement. There are no contracts or documents of the Company that are
required to be filed as exhibits to the Registration Statement pursuant to
the 1933 Act or the rules and regulations thereunder that have not been so
filed.
(b) (i) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
thereunder, 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, in light of the circumstances under which
they were made, not misleading; (ii) on the date of this Underwriting
Agreement, the Registration Statement and the Final Prospectus conform, and
as of the Closing Date, the Registration Statement and the Final
Prospectus, as amended or supplemented, if applicable, will conform in all
material respects to the requirements of the 1933 Act and the rules and
regulations thereunder; and (iii) on the date of this Underwriting
Agreement, the Final Prospectus does not include, and as of the Closing
Date, the Final Prospectus, as amended or supplemented, if applicable, will
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, in light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing does not apply
to statements or omissions in any of such documents made in reliance upon
and in conformity with information furnished in writing (including
electronic media) to the Company by the Underwriter specifically for use in
the Prospectus Supplement.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as otherwise stated
therein, there has been no material adverse change in the condition,
financial or otherwise, earnings, affairs, regulatory situation or business
prospects of the Company, whether or not arising in the ordinary course of
business of the Company.
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Missouri. The
Company has all requisite power and authority (corporate and other) and all
requisite authorizations, approvals, order, licenses, certificates and
permits of and from all governmental or regulatory officials and bodies to
own its properties, to conduct its business as described in the
Registration Statement and the Final Prospectus and to execute, deliver and
perform this Underwriting Agreement, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase and Sale Agreement, except (i) such as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution by the Underwriter of the Offered Securities and
by the
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Placement Agent of the Privately Placed Certificates and (ii) for such
authorizations, approvals, orders, licenses, certificates and permits the
failure of which to obtain would not have a material adverse affect on the
Company. All such authorizations, approvals, orders, licenses, certificates
and permits are in full force and effect and contain no unduly burdensome
provisions and, except as set forth or contemplated in the Registration
Statement or the Final Prospectus, there are no legal or governmental
proceedings pending or, to the best knowledge of the Company, threatened
that would result in a modification, suspension or revocation thereof that
would have a material adverse affect on the Company.
(e) The Offered Securities have been duly authorized, and when they are
issued and delivered pursuant to this Underwriting Agreement in exchange
for the purchase price thereof, they will have been duly executed, issued
and delivered and will be entitled to the benefits provided by the Pooling
and Servicing Agreement, subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws affecting
the rights of creditors generally, and to general principles of equity
(regardless of whether considered in a proceeding in equity or at law), and
will conform in substance to the description thereof contained in the
Registration Statement and the Final Prospectus, and will in all material
respects be in the form contemplated by the Pooling and Servicing
Agreement.
(f) This Agreement has been duly authorized, executed and delivered by
the Company. Each of the Pooling and Servicing Agreement and the Mortgage
Loan Purchase and Sale Agreement, when executed and delivered as
contemplated hereby, will have been duly authorized, executed and delivered
by the Company. This Underwriting Agreement constitutes, and each of the
Pooling and Servicing Agreement and the Mortgage Loan Purchase and Sale
Agreement when so executed and delivered will constitute, a legal, valid,
binding and enforceable agreement of the Company, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and to general
principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(g) As of the Closing Date, the Offered Securities, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase and Sale Agreement and each
of the Mortgage Loans will each conform in all material respects to the
respective descriptions thereof contained in the Prospectus Supplement, and
on the Closing Date, the Company (pursuant to the Pooling and Servicing
Agreement) will assign to the Trustee for the benefit of the
Certificateholders of the Offered Securities, certain representations and
warranties with respect to the Mortgage Loans made by the Mortgage Loan
Seller to the Company in the Mortgage Loan Purchase and Sale Agreement, and
the representations and warranties will be true and correct in all material
respects.
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(h) No filing or registration with, or notice to, or consent, approval,
non- disapproval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by the
Company of the transactions contemplated by this Underwriting Agreement or
the Pooling and Servicing Agreement, except (i) such as have been obtained,
(ii) such as may be required under the 1933 Act, the rules and regulations
thereunder, or state securities or "Blue Sky" laws, in connection with the
purchase and distribution of the Offered Securities by the Underwriter or
of the Privately Placed Certificates by the Placement Agent and (iii) any
the failure of which to obtain would not have a material adverse affect on
the Company.
(i) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending to which the Company
is a party or of which any property of the Company is the subject which, if
determined adversely to the Company would individually or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business or business prospects of the Company and, to
the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(j) As of the Closing Date, each of the Mortgage Loans will meet the
criteria for selection described in the Final Prospectus, and at the
Closing Date, the representations and warranties made by the Company in the
Pooling and Servicing Agreement will be true and correct as of the date
made.
(k) At the time of execution and delivery of the Pooling and Servicing
Agreement, (i) the Company will have good and marketable title to the
Mortgage Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens"), and will not have assigned to any person any of its right, title
or interest in the Mortgage Loans or in the Pooling and Servicing Agreement
or the Offered Securities, (ii) the Company will have the power and
authority to transfer the Offered Securities to the Underwriter and (iii)
upon execution and delivery to the Trustee of the Pooling and Servicing
Agreement and delivery to the Underwriter of the Offered Securities, and
delivery to the Underwriter of the Privately Placed Certificates, the
Trustee will have good and marketable title to the Mortgage Loans and the
Underwriter will have good and marketable title to the Offered Securities,
in each case free and clear of any Liens.
(l) Neither the Company nor the Trust Fund is, and neither (i) the
issuance and sale of the Offered Securities in the manner contemplated by
the Final Prospectus, nor (ii) the activities of the Trust Fund pursuant to
the Pooling and Servicing Agreement will cause the Company or the Trust
Fund to be an "investment company" or under the control of an "investment
company," as such terms are defined in the Investment Company Act of 1940,
as amended.
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(m) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund is
not required to be registered under the Investment Company Act of 1940, as
amended.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Underwriting Agreement, the
Pooling and Servicing Agreement and the Offered Securities have been or
will be paid at or prior to
the Closing.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become liable under the 1933 Act, the 1934 Act, or
other federal or state law or regulation, at common law 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 Final Prospectus or in any amendment 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, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse such indemnified
party for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim, damage, liability or
action; 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 in reliance upon and in conformity
with written information (including in electronic media) furnished to the
Company by the Underwriter specifically for use therein, and (ii) such indemnity
with respect to the preliminary Final Prospectus shall not inure to the benefit
of the Underwriter (or any person controlling the Underwriter) with respect to
any person asserting any such loss, claim, damage or liability who purchased the
Offered Securities that are the subject thereof if such person did not receive a
copy of the Final Prospectus to the confirmation of the sale of such Offered
Securities to such person in any case where such delivery is required by the
1933 Act and the untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact contained in the
preliminary Final Prospectus (or other written material prepared in lieu
thereof) was corrected in the Final Prospectus. This indemnity will be in
addition to any liability that the Company may otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with reference to
written information furnished to the Company by or on behalf of the Underwriter
(including in electronic media) specifically
13
for use in the documents referred to in the foregoing
indemnity. This indemnity will be in addition to any
liability that the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 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 this
Section 5, notify the indemnifying party in writing of the commencement thereof,
but failure to notify the indemnifying party of any such claims shall not
relieve the indemnifying party of any liability that it may have to any
indemnified party except to the extent that the indemnifying party was
prejudiced by such failure. The indemnifying party will be entitled to
participate at its own expense in the defense or, if it so elects, to assume the
defense of any suit brought to enforce any such liability, but, if the
indemnifying party elects to assume the defense, such defense shall be conducted
by legal counsel reasonably acceptable to the indemnified party. In the event
the indemnifying party elects to assume the defense of any such suit and retain
such legal counsel, any indemnified party that is a defendant in the suit may
retain additional legal counsel but shall bear the legal fees and disbursements
of such legal counsel unless (i) the indemnifying party and such indemnified
party shall have mutually agreed to the retention of such legal counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and such indemnified party, and
representation of both such parties by the same legal counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
legal fees and disbursements of more than one legal counsel for all the
indemnified parties and that all such legal fees and disbursements shall be
reimbursed by the indemnifying party as they are incurred. The indemnifying
party shall not be liable to indemnify any person for any settlement of any
claim effected without its prior written consent. The indemnifying party shall
not, without the prior written consent of any indemnified party, which consent
will not be unreasonably withheld, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is a party and
indemnity is or could have been sought hereunder by such indemnified party.
(d) If the indemnification provided for in this Section 5 shall for any
reason be unavailable to an indemnified party under this Section 5, then the
Company and the Underwriter shall contribute to the amount paid or payable by
such indemnified party as a result of the aggregate losses, claims, damages and
liabilities referred to in paragraph (a) or (b) above, in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and the Underwriter on the other from the placement of the Offered
Securities, and (ii) the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statement or omission that
resulted in such losses, claims, damages and liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriter shall be deemed to be in the same proportion as the purchase
price paid by the Underwriter pursuant to Section __ hereof bears to the
difference between (i) the total price at which the Offered Securities
14
were sold by the Underwriter and (ii) the purchase price paid by the Underwriter
pursuant to Section __ hereof. 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
relates to information supplied by the Company or the Underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriter agree that it would not be just and equitable if contributions
pursuant to this paragraph (d) were to be determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this paragraph (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this paragraph (d). Notwithstanding the provisions of this paragraph (d), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities placed by it
exceeds the amount of any damages that the Underwriter has otherwise been
required to pay or has become liable to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each person, if any, who
controls the Underwriter within the meaning of either the 1933 Act or the 1934
Act shall have the same rights to contribution as the Underwriter, and each
person, if any, who controls the Company within the meaning of either the 1933
Act or the 1934 Act, each director and each officer of the Company shall have
the same rights to contribution as the Company. 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 to a party entitled to contribution except to the extent the party
obligated to make such contribution was prejudiced by such failure.
6. Survival of Certain Representations and Obligations. The respective
representations, warranties, agreements, covenants, indemnities and other
statements of the Company, its officers and the Underwriter set forth in, or
made pursuant to, this Underwriting Agreement shall 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, the Company, or any of the offices or
directors or any controlling person of any of the foregoing, and shall survive
the delivery of and payment for the Offered Securities.
7. Termination. (a) This Underwriting Agreement may
be terminated by the Company by notice to the Underwriter
in the event that a stop order suspending the
15
effectiveness of the Registration Statement shall have been issued or
proceedings for that purpose shall have been instituted or threatened.
(b) This Underwriting Agreement may be terminated by the Underwriter by
notice to the Company in the event that the Company or the Master Servicer shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions to be performed or satisfied hereunder by the Company or the Master
Servicer, respectively, at or prior to the Closing Date.
(c) Termination of this Underwriting Agreement pursuant to this Section 7
shall be without liability of any party to any other party other than as
provided in Section 8 hereof.
8. Default of Underwriter. If the Underwriter defaults in its obligation to
purchase the Offered Securities as provided in this Underwriting Agreement and
the aggregate principal amount of the Offered Securities with respect to which
such default occurs is more than ten percent of the aggregate principal amount
or notional amount as applicable, of such Offered Securities, as the case may
be, and arrangements satisfactory to the Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after any such default, this Underwriting Agreement will terminate without
liability on the part of the Company except for the expenses to be paid or
reimbursed by the Company pursuant to Section 9 hereof. As used in this
Underwriting Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 8.
9. Expenses. The Company agrees with the Underwriter that: (a) whether or
not the transactions contemplated in this Underwriting Agreement are consummated
or this Underwriting Agreement is terminated, the Company will pay all fees and
expenses incident to the performance of its obligations under this Underwriting
Agreement, including but not limited to, (i) the Commission's registration fee,
(ii) the expenses of printing and distributing the Registration Statement, any
preliminary prospectus, the Prospectus Supplement, any amendments or supplements
to the Registration Statement or the Prospectus Supplement, and any Blue Sky
memorandum or legal investment survey and any supplements thereto, (iii) fees
and expenses of rating agencies, accountants and counsel for the Company, (iv)
the expenses referred to in Section 3(e) hereof, and (v) all miscellaneous
expenses referred to in Item 14 of the Registration Statement; (b) all
out-of-pocket expenses, including counsel fees, disbursements and expenses,
reasonably incurred by the Underwriter in connection with investigating,
preparing to market and marketing the Offered Securities and proposing to
purchase and purchasing the Offered Securities under this Underwriting Agreement
will be borne and paid by the Company if this Underwriting Agreement is
terminated by the Company pursuant to Section 8 hereof or by the Underwriter on
account of the failure, refusal or inability on the part of the Company to
perform all obligations and satisfy all conditions on the part of the Company to
be performed or satisfied hereunder; and (c) the Company will pay the cost of
preparing the certificates for the Offered Securities.
16
Except as otherwise provided in this Section 9, the Underwriter agrees to
pay all of its expenses in connection with investigating, preparing to market
and marketing the Offered Securities and proposing to purchase and purchasing
the Offered Securities under this Underwriting Agreement, including the fees and
expenses of their counsel and any advertising expenses incurred by it in making
offers and sales of the Offered Securities.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter, will be mailed, delivered or
telecopied and confirmed to the Company at ______________________________,
attention: ______________, facsimile number _______________ or, if sent to the
Company, will be mailed, delivered or telecopied and confirmed to it at 000 Xxxx
00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, attention: Xxxx X.
Xxxxxxxxx, facsimile number (000) 000-0000.
11. Successors. This Underwriting Agreement shall inure to the benefit of
and shall be binding upon the Underwriter, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Underwriting Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Underwriting Agreement, or any provisions herein contained; the Underwriting
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person, except that (i) the representations and warranties of the
Company contained in this Underwriting Agreement shall also be for the benefit
of any person or persons who controls or control any Underwriter within the
meaning of Section 15 of the 1933 Act, and (ii) the indemnities by the
Underwriter shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who controls or control the Company within the meaning of
Section 15 of the 1933 Act. No purchaser of the Offered Securities from the
Underwriter shall be deemed a successor because of such purchase.
12. Applicable Law; Counterparts. This Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York.
This Underwriting 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.
13. Time of the Essence. Time shall be of the
essence of this Underwriting Agreement.
17
If the foregoing is in accordance with your understanding, please sign and
return two counterparts hereof.
Very truly yours,
COMMERCIAL MORTGAGE ACCEPTANCE
CORP.
By:
Name:
Title:
Accepted as of the date hereof
By:
Name:
Title:
18
SCHEDULE I
Title of Offered Securities:
Commercial Mortgage Acceptance Corp. Commercial Mortgage
Pass-Through Certificates, Series [______________], Class
A, Class B and Class [__]
Terms and Conditions:
Specified funds for payment of purchase price:
Wire transfer of immediately available Federal Funds.
Required Rating:
As described in the Prospectus Supplement.
Time of Delivery:
____________________, 199_ at 10:00 a.m.
_______________ time
Closing Location:
----------------------
----------------------
----------------------
Names and address of Underwriter:
Address for Notices, etc: -----------------------------
-----------------------------
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