DLJ COMMERCIAL MORTGAGE TRUST 2000-CKP1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CKP1
UNDERWRITING AGREEMENT
October 27, 2000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxxx Inc.
Securities Corporation 000 Xxxxxxxxx Xxxxxx, 00xx Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Prudential Securities Incorporated McDonald Investments Inc.
One New York Plaza 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the "Company"),
proposes to sell to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("DLJSC"), Prudential Securities Incorporated ("PSI"), Credit Suisse First
Boston Corporation ("CSFB"), Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI") and McDonald
Investments Inc. ("McDonald"; and, collectively with DLJSC, PSI. CSFB and SSBI,
the "Underwriters"), subject to the terms and conditions stated herein, those
classes (each, a "Class") of its Commercial Mortgage Pass-Through Certificates,
Series 2000-CKP1, specified in Schedule II hereto (the "Registered
Certificates"). The Registered Certificates, together with the other commercial
mortgage pass-through certificates of the same series (such other commercial
mortgage pass-through certificates, the "Private Certificates"; and,
collectively with the Registered Certificates, the "Certificates"), will be
issued pursuant to a pooling and servicing agreement to be dated as of November
1, 2000 (the "Pooling and Servicing Agreement"), among the Company, as
depositor, Key Corporate Capital Inc. d/b/a Key Commercial Mortgage, as master
servicer (in such capacity, the "Master Servicer") and as special sub-servicer
(in such capacity, the "Special Sub-Servicer"), Midland Loan Services, Inc., as
special servicer (the "Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A.,
as trustee (the "Trustee"). The Certificates will evidence the entire beneficial
ownership of 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. Multiple 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 Company will acquire some of the Mortgage Loans from Column Financial, Inc.
("Column"), some of the Mortgage Loans from Prudential Mortgage Capital Funding,
LLC ("PMCF"), and the remaining Mortgage Loans from KeyBank National Association
("KeyBank; and, collectively with Column and
PMCF, the "Mortgage Loan Sellers"), in each case pursuant to a mortgage loan
purchase agreement dated as of the date hereof (each, a "Mortgage Loan Purchase
Agreement"), between the Company and the particular Mortgage Loan Seller.
Prudential Mortgage Capital Company, LLC ("PMCC") will also be a party to the
Mortgage Loan Purchase Agreement between the Company and PMCF. The Registered
Certificates and the Mortgage Loans 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. Capitalized terms used but not otherwise
defined herein will have the respective meanings assigned thereto in the
Prospectus Supplement.
It is our understanding that DLJSC and PSI will act as co-lead managers
with respect to the offering of the Registered Certificates contemplated hereby
(DLJSC and PSI, together in such capacity, the "Co-Lead Managers").
Concurrently with the sale of the Registered Certificates contemplated
hereby, the Company intends to sell the Private Certificates to DLJSC, PSI and
CSFB, pursuant to a certificate purchase agreement dated as of the date hereof
(the "Certificate Purchase Agreement"), among the Company, DLJSC, PSI and CSFB.
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. 333-82275) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"), of the
offer and sale of commercial mortgage pass-through certificates, such as the
Registered Certificates, which registration statement has become effective. 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 Registered
Certificates and the method of distribution thereof and has previously advised
you of all further information (financial and other) with respect to the
Registered 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 under 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 under the Act is
hereinafter called a "Preliminary Prospectus Supplement"; and any such
Preliminary Prospectus Supplement, together with the form of prospectus that
accompanied it, are hereinafter called a "Preliminary Prospectus". References
herein to the Prospectus or Prospectus Supplement shall exclude any information
that is a part thereof solely by reason of such information being incorporated
therein by reference pursuant to a filing made in accordance with Section 5(b)
hereof. The Company, as depositor with respect to the Trust Fund, will file with
the Commission within fifteen days of the issuance of the Registered
Certificates a Current Report on Form 8-K (a "Current Report") setting forth
specific information concerning the Registered Certificates.
(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
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(as defined in Section 3), any other amendment to the Registration Statement
becomes effective, when, prior to the Closing Date, 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
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 or electronic information furnished to the Company by
any Underwriter directly for use therein, (B) the information contained in or
omitted from the Prospectus, or any amendment thereof or supplement thereto, in
reliance upon and conformity with (1) the Master Tape (it being acknowledged
that the Master Tape was used to prepare the Prospectus Supplement, including,
without limitation, Exhibit A-1 and Exhibit A-2 to the Prospectus Supplement and
the accompanying diskette), (2) the representations and warranties of any
Mortgage Loan Seller set forth in or made pursuant to the related Mortgage Loan
Purchase Agreement, or (3) any other information concerning the characteristics
of the Mortgage Loans, the related obligors on the Mortgage Loans (the
"Borrowers") or the related mortgaged real properties securing the Mortgage
Loans (the "Mortgaged Properties") furnished to the Company or the Underwriters
by any Mortgage Loan Seller, (C) the information regarding the Mortgage Loans,
the Borrowers, the Mortgaged Properties and/or the Mortgage Loan Sellers
contained in or omitted from the Prospectus Supplement, or any amendment thereof
or supplement thereto, under the headings "Summary of the Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties",
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Mortgage Pool", on Exhibit A-1 or Exhibit A-2 thereto or on the
accompanying diskette, or (D) the information contained in or omitted from any
Computational Materials or ABS Term Sheets (each as defined in Section 9
hereof), or any amendment thereof or supplement thereto, incorporated by
reference in the Registration Statement, any Preliminary Prospectus or the
Prospectus (or any amendment thereof or supplement thereto) by reason of a
filing made in accordance with Section 5(b). The "Master Tape" consists of the
compilation of underlying information and data regarding the Mortgage Loans
covered by the Independent Accountants Report on Applying Agreed Upon Procedures
dated October 27, 2000, as supplemented to the Closing Date, and rendered by
Xxxxxx Xxxxxxxx LLP.
(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 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, the Pooling and Servicing Agreement and the respective
Mortgage Loan Purchase Agreements, and the Company 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 Commission has not made any request for any further amendment of
the Registration Statement or the Prospectus or for any additional information
regarding the Registered Certificates, the Commission has not issued any stop
order suspending the effectiveness of the Registration Statement and has not
instituted or, to the Company's knowledge, threatened to institute
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any proceeding for that purpose, and there has not been any suspension of the
qualification of the Registered Certificates for sale in any jurisdiction or the
initiation or, to the Company's knowledge, 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 and the respective Mortgage Loan Purchase
Agreements; this Agreement has been duly authorized, executed and delivered by
the Company; and the Pooling and Servicing Agreement and the respective Mortgage
Loan Purchase Agreements, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company.
(f) Assuming due authorization, execution and delivery thereof by the other
parties thereto, the Pooling and Servicing Agreement and the respective Mortgage
Loan Purchase Agreements, when delivered by the Company, will constitute, valid
and binding agreements of the Company, enforceable against the Company in
accordance with their respective 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 any such agreement which purport or are
construed to provide indemnification from securities law liabilities.
(g) The Registered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus; the issuance and sale of the Registered Certificates have been duly
and validly authorized by the Company; and the Registered Certificates, when
duly and validly executed and authenticated by the Trustee in accordance with
the Pooling and Servicing Agreement and paid for by and delivered to the
Underwriters in accordance with this Agreement, will be entitled to the benefits
of the Pooling and Servicing Agreement.
(h) The execution, delivery and performance by the Company of this
Agreement, the Pooling and Servicing Agreement and the respective Mortgage Loan
Purchase Agreements will not result in a breach or violation of any term or
provision of the certificate of incorporation or by-laws of, or any statute or
regulation applicable to, 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 order or decree
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 jurisdiction over it, which materially and adversely
affects the ability of the Company to perform its obligations under this
Agreement, the Pooling and Servicing Agreement or any of the Mortgage Loan
Purchase Agreements.
(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, any of the Mortgage Loan
Purchase Agreements or the Registered Certificates, (ii) seeking to prevent the
issuance of the Registered Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Pooling and Servicing Agreement
or any of the Mortgage Loan Purchase
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Agreements, (iii) which might materially and adversely affect the performance by
the Company of its obligations under, or the validity or enforceability against
the Company of, this Agreement, the Pooling and Servicing Agreement, any of the
Mortgage Loan Purchase Agreements or the Registered Certificates or (iv) seeking
to affect adversely the federal income tax attributes of the Registered
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
this Agreement, the Pooling and Servicing Agreement or any of the Mortgage Loan
Purchase Agreements.
(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 Registered 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
Registered Certificates by the Underwriters.
(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, the Pooling and
Servicing Agreement or any of the Mortgage Loan Purchase Agreements or the
issuance and sale of the Registered 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.
(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; provided that this representation and warranty is
made with respect to each Mortgage Loan on the basis of the assumption that the
related Mortgage Loan Seller delivered to the Company good title to such
Mortgage Loan, free and clear of any pledge, mortgage, lien, security interest
or other encumbrance.
(p) The transfer of the Mortgage Loans to the Trustee and the sale of the
Certificates by the Company, at the Closing Date, will be treated by the Company
for financial accounting and reporting purposes as a sale of assets and not as a
pledge of assets to secure debt.
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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 amount of each Class of the
Registered Certificates set forth opposite each such Underwriter's name in
Schedule I hereto.
The purchase price for each Class of the Registered Certificates, expressed
as a percentage of the aggregate principal amount thereof as of the Closing
Date, is set forth in Schedule II hereto. There will be added to the purchase
price of the Registered Certificates interest in respect of each Class of the
Registered Certificates at the interest rate applicable to such Class from
November 1, 2000 to but not including the Closing Date.
Each Underwriter hereby represents and warrants that, for financial
accounting and reporting purposes, such Underwriter shall treat its acquisition
of Registered Certificates, pursuant to this Agreement, as a purchase of assets
and not as a secured lending.
3. Delivery and Payment. The closing for the purchase and sale of the
Registered 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 Registered Certificates being
herein called the "Closing Date"). Delivery of the Registered Certificates will
be made in book-entry form through the facilities of The Depository Trust
Company ("DTC"). Each Class of Registered Certificates will be represented by
one or more definitive global Certificates to be deposited by or on behalf of
the Company with DTC. Delivery of the Registered 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 Registered 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 Registered Certificates for sale to the public as set forth
in the Prospectus. It is further understood that the Company in reliance upon
Policy Statement 105, has not filed and will not file an offering statement
pursuant to Section 352-e of the General Business Law of the State of New York
with respect to the Registered Certificates. As required by Policy Statement
105, each Underwriter therefore covenants and agrees with the Company that sales
of the Registered Certificates made by such Underwriter in the State of New York
will be made only to institutional investors within the meaning of Policy
Statement 105.
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 Registered Certificates is required to
be delivered under the Act, any amendment to the Registration Statement
affecting the Registered Certificates (other than any amendment by reason of the
operation of Rule 429 under the Act) 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
Registered Certificates, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
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affecting the Registered 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
Registered 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 affecting the Registered Certificates
(other than any amendment by reason of the operation of Rule 429 under the Act)
or any supplement to the Prospectus unless the Company has furnished each of the
Co-Lead Managers with a copy for its review prior to filing, and will not file
any such proposed amendment or supplement to which either of the Co-Lead
Managers reasonably objects, in any event until after the end of the period
during which a prospectus is required to be delivered to purchasers of the
Registered 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 stop order suspending the
effectiveness of the Registration Statement affecting the Registered
Certificates and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) The Company will cause any Computational Materials and Structural Term
Sheets (as defined in Section 9 below) with respect to the Registered
Certificates that are delivered by an Underwriter to the Company pursuant to
Section 9 to be filed with the Commission on a Current Report pursuant to Rule
13a-11 under the Securities Exchange Act of 1934, as amended (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 Registered 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 Registered 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 No-Action Letters (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 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 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
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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.
(c) If, at any time when a prospectus relating to the Registered
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, for so long as delivery by an Underwriter or
dealer of a prospectus relating to the Registered Certificates may be required
by the Act, as many copies of the Prospectus, each Preliminary Prospectus, if
any, and any amendments and supplements thereto as the Underwriters may
reasonably request.
(e) The Company will furnish such information, execute such instruments and
take such action, if any, as may be required to qualify the Registered
Certificates for sale under the laws of such jurisdictions as the Co-Lead
Managers may designate and will maintain such qualification in effect so long as
required for the distribution of the Registered 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.
(f) The costs and expenses incurred in connection with the transactions
herein contemplated shall be allocated pursuant to the terms of the Term Sheet
for the Joint Conduit Securitizations between DLJSC, PSI, Column, PMCC and
KeyBank.
6. Conditions to the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase their respective allocations of the
Registered 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 as of the Closing
Date, to the accuracy in all material respects of the statements of the Company
made in any certificates delivered 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 Registered
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.
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(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 10 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, any Mortgage Loan Purchase Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, in the Pooling and Servicing Agreement or in
any of the Mortgage Loan Purchase Agreements, 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
signature of such person appearing on any such documents and certificates is his
or her genuine signature; 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
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, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements.
(e) The Underwriters shall have received from Sidley & Austin, in its
capacity as counsel for the Company, an opinion, dated the Closing Date, that is
substantially in the form attached hereto as Exhibit A.
(f) The Underwriters shall have received from Sidley & Austin, in its
capacity as counsel to the Company and the Underwriters, a letter, dated the
Closing Date, that is substantially in the form attached hereto as Exhibit B.
(g) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Special Sub-Servicer and the Trustee,
a favorable opinion of counsel, dated the Closing Date and satisfactory to
counsel for the Underwriters, addressing, among other things, 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 such customary limitations as are
acceptable to counsel for the Underwriters, the enforceability of the Pooling
and Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on certificates of public officials and 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
and
9
be based upon such other assumptions, qualifications and limitations as may be
reasonably acceptable to counsel for the Underwriters. Such opinion may be
qualified as an opinion only on the laws of the jurisdiction wherein the subject
party is organized, the laws of the State of New York and the federal law of the
United States.
(h) The Underwriters shall have received from Xxxxxx Xxxxxxxx LLP,
certified public accountants, letters dated the date of the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and
satisfactory in form and substance to the Co-Lead Managers 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 letters, they have
recalculated such numbers and percentages set forth in the Preliminary
Prospectus Supplement and the Prospectus Supplement as the Co-Lead Managers may
reasonably request and as are agreed to by Xxxxxx Xxxxxxxx LLP, compared the
results of their calculations to the corresponding items in the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and found
each such number and percentage set forth in the Preliminary Prospectus
Supplement and the Prospectus Supplement, respectively, to be in agreement with
the results of such calculations.
(i) The Underwriters shall have received all opinions, certificates and
other documents required under the related Mortgage Loan Purchase Agreement to
be delivered by each Mortgage Loan Seller (and, in the case of PMCF, by PMCC)
and its (or their) counsel in connection with such Mortgage Loan Seller's sale
of Mortgage Loans to the Company, and each such opinion shall be dated the
Closing Date and addressed to the Underwriters.
(j) The Registered Certificates shall have been rated as indicated on
Schedule II by the Rating Agencies and such ratings shall not have been
rescinded.
(k) The Underwriters shall have received all opinions rendered to the
Rating Agencies by counsel to the Company and each Mortgage Loan Seller, and
each such opinion shall be dated the Closing Date and addressed to the
Underwriters.
(l) All proceedings in connection with the transactions contemplated by
this Agreement, and all documents incident hereto and thereto, shall be
reasonably satisfactory in form and substance to the Co-Lead Managers and
counsel for the Underwriters.
(m) Subsequent to the date hereof, there shall not have occurred any
change, or development including a prospective change, in or affecting the
business or properties of the Company which, in the judgment of the Co-Lead
Managers after consultation with the Company, materially impairs the investment
quality of the Registered Certificates so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Registered Certificates as contemplated in the Prospectus.
7. Cancellation for Failure to Perform. If any of the conditions specified
in 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
in Section 6 or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Co-Lead Managers
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 Co-Lead Managers. Notice of such cancellation shall be given to the
Company in writing, or by telephone or by either telegraph or telecopier
confirmed in writing.
10
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person who controls such Underwriter within the meaning of the Act or the
Exchange Act, against any and all losses, claims, damages, liabilities, costs
and expenses, joint or several, to which such Underwriter or any such
controlling person may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (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
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment of or supplement to any such document, 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 the light
of the circumstances under which they were made, not misleading, and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending against such loss, claim, damage, liability, cost, expense or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability, cost or expense (A) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written or electronic information furnished
to the Company by any Underwriter specifically for use therein, (B) arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with (1) the Master Tape (it being acknowledged
that the Master Tape was used to prepare any Preliminary Prospectus Supplement
and the Prospectus Supplement, including, without limitation, Exhibit A-1 and
Exhibit A-2 thereto and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase Agreement or (3) any other information concerning
the characteristics of the Mortgage Loans, the Mortgaged Properties or the
Borrowers furnished to the Company or the Underwriters by any Mortgage Loan
Seller, or (C) arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission (other than a Company
Mathematical Error (as defined below)) made in any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment thereof or supplement
thereto) with respect to the Mortgage Loans, the Mortgaged Properties, the
Borrowers and/or the Mortgage Loan Sellers under the headings "Summary of the
Prospectus Supplement--The Underlying Mortgage Loans and the Mortgaged Real
Properties", "Risk Factors--Risks Related to the Underlying Mortgage Loans" and
"Description of the Mortgage Pool" therein, on Exhibit A-1 or Exhibit A-2
thereto or on the accompanying diskette, or (D) arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Computational Materials or ABS Term Sheets (or any amendments
thereof or supplements thereto) furnished to prospective investors and made a
part of, or incorporated by reference into, the Registration Statement or in any
Preliminary Prospectus or the Prospectus (or any amendment thereof or supplement
thereto) by reason of a filing made pursuant to Section 5(b); and provided,
further, that such indemnity with respect to any Preliminary Prospectus 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,
liability, cost or expense purchased the Registered Certificates which are the
subject thereof if such Underwriter did not deliver to such person a copy of the
Prospectus (or the Prospectus as most recently 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, the Company has previously
furnished to such Underwriter copies thereof in sufficient quantity and the
untrue statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as most
11
recently amended or supplemented) and such correction would have cured the
defect giving rise to any such loss, claim, damage, liability, cost or expense.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
A "Company Mathematical Error" consists of any untrue statement or omission
made in the Prospectus Supplement or any Preliminary Prospectus Supplement as a
result of an error in the manipulation of, or any calculations based upon, or
any aggregation (other than an aggregation made in the Master Tape) of, the
numerical, financial and/or statistical information regarding the Mortgage
Loans, the Mortgaged Properties, the Borrowers and/or the Mortgage Loan Sellers
contained in the Master Tape or otherwise provided to the Company by any
Mortgage Loan Seller.
(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, against any and all
losses, claims, damages, liabilities, costs and expenses to which the Company or
any such director, officer or controlling person may become subject under the
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities, costs and expenses (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 (i) any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto), or (ii) any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) delivered to prospective investors by such Underwriter and furnished to
the Company, whether by such Underwriter or any other Underwriter, pursuant to
or as contemplated by Section 9 and made a part of, or incorporated by reference
in, the Registration Statement or in any Preliminary Prospectus Supplement or
the Prospectus (or any amendment thereof or supplement thereto) by reason of a
filing made pursuant to Section 5(b), or arise out of or are based on the
omission or alleged omission to state in any such document a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made (and, in the case of Computational Materials and ABS
Term Sheets, when read in conjunction with the Prospectus), not misleading;
provided, however, that no Underwriter shall be liable for any such loss, claim,
damage, liability, cost or expense that arises out of an untrue statement or
alleged untrue statement or omission or alleged omission in any Preliminary
Prospectus Supplement or the Prospectus Supplement (or any amendment thereof or
supplement thereto), except to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written or electronic information relating to such
Underwriter furnished to the Company by such Underwriter specifically for use in
such document; and provided, further, that no Underwriter shall be liable to the
extent that any loss, claim, damage, liability, cost or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission in any Computational Materials or ABS Term Sheets (or any
amendment thereof or supplement thereto) made in reliance upon and in conformity
with (A) the Master Tape (it being acknowledged that the Master Tape was used to
prepare any Computational Materials and ABS Term Sheets), (B) the
representations and warranties of any Mortgage Loan Seller set forth in or made
pursuant to the related Mortgage Loan Purchase Agreement or (C) any other
information concerning the characteristics of the Mortgage Loans, the Mortgaged
Properties or the Borrowers furnished to the Underwriters by the Company or any
Mortgage Loan Seller (the error in the Master Tape or any such other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers or the breach in such representations and warranties that gave
rise to such untrue statement or omission, a "Collateral Error"), except to the
extent that a Mortgage Loan Seller or the Company notified such Underwriter in
writing of such Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any case, a
"Corrected Collateral Error") prior to the time of confirmation of sale to
12
the person that purchased the Registered Certificates that are the subject of
any such loss, claim, damage, liability, cost or expense, or action in respect
thereof, and such Underwriter failed to deliver to such person corrected
Computational Materials or ABS Term Sheets (or, if the superseding or correcting
information was contained in the Prospectus, failed to deliver to such person
the Prospectus as amended or supplemented) at or prior to confirmation of such
sale to such person. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. For all purposes of this
Agreement, the Company acknowledges that the statements set forth in [the fourth
sentence of the last paragraph of the cover page, the four sentences under the
heading "Summary of Prospectus Supplement--Relevant Parties--Underwriters", and
the entire second paragraph, the second sentence of the third paragraph, the
first sentence of the fifth paragraph and the entire last paragraph under the
heading "Method of Distribution" in the Prospectus Supplement and any
Preliminary Prospectus Supplement] 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 (or amendments thereof or supplements thereto)
furnished to the Company by any Underwriter for filing pursuant to Section
5(b)), and you confirm that such statements are correct. Any Computational
Materials or ABS Term Sheets (or amendments thereof or supplements thereto) so
furnished to the Company by a particular Underwriter shall relate exclusively to
and be, to the extent provided herein, the several responsibility of such
Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under paragraph (a) or
(b) of this Section 8 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 paragraph (a) or (b) of 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 paragraph (a) or (b), as
applicable, of 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; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party, and if 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 preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, selected by the Co-Lead Managers in the case of
paragraph (a) of this Section 8 and by the Company in the case of paragraph (b)
of this Section 8, representing the indemnified parties under such paragraph (a)
or (b), as the case may be, 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
13
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).
An indemnifying party shall not be liable for any settlement of any
proceeding effected without its consent. If any proceeding is settled with such
consent or if there is a final judgment for the plaintiff, however, the
indemnifying party shall indemnify the indemnified party from and against any
loss, claim, damage, liability, cost or expense by reason of such settlement or
judgment. Notwithstanding the foregoing, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which the indemnifying party is obligated under this Section 8, (ii)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (iii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(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 in respect of any losses, claims, damages, liabilities, costs or expenses
referred to in and intended to be covered under such paragraph (a) or (b), as
the case may be, above, then the indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities, costs or expenses as follows:
(i) in the case of any such losses, claims, damages, liabilities,
costs and expenses (or actions in respect thereof) referred to in and
intended to be covered under paragraph (a) above, 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 total purchase price of the Registered Certificates specified in
Schedule II hereto and the Company is responsible for the balance (or, if
such allocation is not permitted by applicable law or if the indemnified
party failed to give the notice required in Section 8(c) or in the last
paragraph of this Section 8(d), in such proportion as would be determined
pursuant to the immediately following clause (ii)); 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 Registered
Certificates) be responsible under this subparagraph (i) for any amount in
excess of the underwriting discount applicable to the Registered
Certificates purchased by such Underwriter hereunder; and
(ii) in the case of any losses, claims, damages, liabilities, costs
and expenses (or actions in respect thereof) referred to in and intended to
be covered under paragraph (b) above, 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, liabilities, costs or
expenses (or actions in respect thereof) as well
14
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 that is the basis for such loss, claim,
damage, liability, cost or expense, 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.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by per
capita allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities, costs
or expenses (or actions in respect thereof) referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that the
indemnifying party will be ultimately obligated to pay such expenses. If any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the indemnified party
that received such payment shall promptly refund the amount so paid to the
indemnifying party.
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(d), each person who controls an Underwriter within the meaning of the
Act or the Exchange 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 Section 8(d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8(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 liability it or they may have otherwise than
under this Section 8(d).
9. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., New York City time, on the date hereof, each
Underwriter shall deliver to the Company and its counsel, as provided below, a
complete copy of all materials prepared, or caused to be prepared, and provided
by such Underwriter to prospective investors in the Registered Certificates,
which materials 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, Xxxxxxx 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 "1994 Xxxxxx/PSA 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 "1995 PSA Letter" and, together with the 1994 Xxxxxx/PSA 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
15
meaning of the 1995 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 1995 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.
(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 prepared, or caused to be prepared, any
Collateral Term Sheets that were provided to potential investors in the
Registered 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 Registered Certificates prepared, or caused to be
prepared, by such Underwriter that were furnished (whether in written,
electronic or other format) to prospective investors in the Registered
Certificates prior to the date hereof, except for any Preliminary
Prospectus and any Computational Materials and ABS Term Sheets with respect
to the Registered 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 prepared, or caused to be prepared, by such
Underwriter that were provided to potential investors in the Registered
Certificates comply with the requirements of the No-Action Letters;
(iii) on the respective dates any Computational Materials and/or ABS
Term Sheets with respect to the Registered 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 necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates were furnished by such Underwriter
to a prospective investor and on the date hereof, such Underwriter
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,
such Underwriter 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 such Underwriter contained in
subparagraphs (ii) and (iii) above of this Section 9(b);
(v) all Collateral Term Sheets with respect to the Registered
Certificates prepared, or caused to be prepared, by such Underwriter that
were furnished to prospective investors
16
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;
(vi) unless otherwise consented to by the Company, all Computational
Materials and ABS Term Sheets with respect to the Registered Certificates
prepared, or caused to be prepared, by such Underwriter that were furnished
to prospective investors contained and will contain a legend generally to
the effect that the Company has not participated in the preparation of or
authorized the distribution of such Computational Materials or ABS Term
Sheets; and
(vii) 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 Registered 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;
provided that no Underwriter makes any representation or warranty as to whether
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates included or will include any untrue statement or omission resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriter from a
Mortgage Loan Seller or the Company of notice of such Collateral Error or
materials superseding or correcting such Collateral Error).
(c) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of any Underwriter or counsel for the Underwriters 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 necessary to make the statements therein, in the light of
the circumstances under which they were made (and 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 Exchange Act or the
rules thereunder, then the Underwriters that furnished the subject Computational
Materials or ABS Term Sheets to prospective investors in the Registered
Certificates, at their expense (such expense to be allocated among them based on
the relative fault of such Underwriters) (or, if such amendment or supplement is
necessary in order for any Current Report to comply with the Act or the Exchange
Act or the rules thereunder, 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 Registered Certificates that received such
information being amended or supplemented. 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
necessary to make the statements therein, in the light of the circumstances
under which they were made, 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 any of
the Underwriters to the Company pursuant to this paragraph (c)) or (ii) such
filing is not required under the Act. Each Underwriter that furnished the
subject Computational Materials or ABS Term Sheets to prospective investors in
the Registered Certificates represents and warrants to the Company, as of the
date of delivery of such
17
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 necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
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 a Mortgage Loan
Seller or the Company of notice of such Collateral Error or materials
superseding or correcting such Collateral Error).
(d) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Company or counsel for the Company 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 any Underwriter
pursuant to or as contemplated by this Section 9 or the omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they made (and 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 Exchange Act or the
rules thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters that furnished
the subject Computational Materials or ABS Term Sheets to prospective investors
in the Registered Certificates, at their expense (such expense to be allocated
among them based on the relative fault of such Underwriters) (or, if such
amendment or supplement is necessary in order for any Current Report to comply
with the Act or the Exchange Act or the rules thereunder, 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 Registered
Certificates that received such information being amended or supplemented. Each
Underwriter that furnished the subject Computational Materials or ABS Term
Sheets to prospective investors in the Registered Certificates 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 necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, no Underwriter makes any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Registered
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 a Mortgage Loan
Seller or the Company of notice of such Collateral Error or materials
superseding or correcting such Collateral Error).
(e) 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 letters.
18
10. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the amount of the
Registered Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender of
such Registered Certificates in accordance with the terms hereof, and the amount
of the Registered Certificates not purchased does not aggregate more than 10% of
the total amount of the Registered Certificates set forth in Schedule I hereof
(based on aggregate purchase price), the remaining Underwriters shall be
obligated to take up and pay for the Registered Certificates that the
withdrawing or defaulting Underwriter agreed but failed to purchase (pro rata
based on the aggregate purchase prices agreed to be paid by the non-Defaulting
Underwriters for their respective allocations of the Registered Certificates, as
set forth on Schedule I and Schedule II hereof).
(b) If any Underwriter shall fail to take up and pay for the amount of the
Registered Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Registered Certificates in accordance with the
terms hereof, and the amount of the Registered Certificates not purchased
aggregates more than 10% of the total amount of the Registered Certificates set
forth in Schedule I hereto (based on aggregate purchase price), 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(f) 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 Registered
Certificates such Underwriter agreed to purchase hereunder) be under any
liability to the Company (except to the extent provided in Section 5(f), Section
8 and Section 9 hereof). Nothing herein shall be deemed to relieve any
Defaulting Underwriter from any liability it may have to the Company or the
other Underwriters by reason of its failure to take up and pay for Registered
Certificates as agreed by such Defaulting Underwriter.
11. Termination Upon the Occurrence of Certain Events. This Agreement shall
be subject to termination in the absolute discretion of the Co-Lead Managers by
notice given to the Company prior to delivery of and payment for all Registered
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
judgment of the Co-Lead Managers, impractical to market the Registered
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 Registered Certificates. The provisions
of Section 5(f), Section 8 and Section 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 any Underwriter, will be mailed, delivered or
either telegraphed or transmitted by telecopier and confirmed to it at its
address set forth on Schedule I hereto (or, in the case of any Underwriter, at
such other address as may be furnished by such Underwriter to the Company); or,
if sent to the Company, will be mailed, delivered or either telegraphed or
transmitted by telecopier and
19
confirmed to it at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: X.
Xxxxx XxXxxxx (or at such other address as may be furnished by the Company to
each Underwriter in accordance with this Section 13).
14. Beneficiaries. 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, heirs and legal representatives, and no other person will have
any right or obligation hereunder.
15. Miscellaneous. Neither this Agreement nor any term or provision hereof
may be changed, waived, discharged or terminated except by a writing signed by a
duly authorized officer of the party against who enforcement of such change,
waiver, discharge or termination is sought to be enforced. This Agreement will
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements negotiated, 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.
[SIGNATURE PAGE FOLLOWS]
20
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:_________________________________
Name:
Title:
Accepted at New York, New York Accepted at New York, New York
as of the date first written above. as of the date first written above.
XXXXXXXXX, XXXXXX & XXXXXXXX PRUDENTIAL SECURITIES INCORPORATED
SECURITIES CORPORATION
By:_______________________________ By:_________________________________
Name: Name:
Title: Title:
Accepted at New York, New York Accepted at New York, New York
as of the date first written above. as of the date first written above.
XXXXXXX XXXXX XXXXXX INC. MCDONALD INVESTMENTS INC.
By:_______________________________ By:_________________________________
Name: Name:
Title: Title:
Accepted at New York, New York
as of the date first written above.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:_______________________________
Name:
Title:
21
SCHEDULE I
PRINCIPAL AMOUNT OF RELEVANT
CLASS OF OFFERED
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
---------------------------- ---------- ----------------------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Class A-1A $ 77,655,000
Securities Corporation Class A-1B $384,688,500
00 Xxxxxxx Xxxxxx Class A-2 $ 25,798,000
New York, New York 10010 Class A-3 $ 29,023,500
Attention: X. Xxxxx XxXxxxx Class A-4 $ 8,062,000
Class B-1 $ 8,062,000
Class B-2 $ 12,899,000
Class B-3 $ 6,449,500
Prudential Securities Incorporated Class A-1A $ 77,655,000
One New York Plaza Class A-1B $384,688,500
New York, New York 10292 Class A-2 $ 25,798,000
Attention: Xxxxx Xxxxxxx Class A-3 $ 29,023,500
Class A-4 $ 8,062,000
Class B-1 $ 8,062,000
Class B-2 $ 12,899,000
Class B-3 $ 6,449,500
Credit Suisse First Boston Class A-1A $0
Corporation Class A-1B $0
11 Madison Avenue Class A-2 $0
New York, New York 10010 Class A-3 $0
Class A-4 $0
Attention: Xxxxxxx X. Xxxxxx, Esq. Class B-1 $0
Class B-2 $0
Class B-3 $0
Xxxxxxx Xxxxx Xxxxxx Inc. Class A-1A $ 15,000,000
000 Xxxxxxxxx Xxxxxx, 00xx Floor Class A-1B $ 10,000,000
New York, New York 10013 Class A-2 $0
Attention: Xxxx Xxxxxxxxxxx Class A-3 $0
Class A-4 $0
Class B-1 $0
Class B-2 $0
Class B-3 $0
22
McDonald Investments Inc.(1) Class A-1A $ 40,000,000
000 Xxxxxxxx Xxxxxx Class A-1B $ 10,000,000
Cleveland, Ohio 44114 Class A-2 $0
Attention: Xxxxxx Xxxxxxxx Class A-3 $0
Class A-4 $0
Class B-1 $0
Class B-2 $0
Class B-3 $0
---------------
(1) Notices and other communications should also be sent to Xxxxxx X.
Xxxxx at KeyBank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000.
23
SCHEDULE II
Registration Statement No. 333-82275
Basic Prospectus dated: October 17, 2000
Prospectus Supplement dated: October 27, 2000
Title of Registered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 2000-CKP1, Class A-1A,
Class A-1B, Class A-2, Class A-3, Class A-4,
Class B-1 and Class B-2
Closing: 10:00 a.m. on November 7, 2000
at the offices of
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
24
SCHEDULE II (CONTINUED)
INITIAL
AGGREGATE PRINCIPAL INITIAL
CLASS DESIGNATION AMOUNT OF CLASS(1) PASS-THROUGH RATE PURCHASE PRICE(2) RATING (3)
----------------- ------------------ ----------------- ----------------- ----------
Class A-1A $210,310,000 6.930% 100.0000000% Aaa/AAA
Class A-1B $789,377,000 7.180% 100.5156250% Aaa/AAA
Class A-2 $ 51,596,000 7.350% 100.5312500% Aa2/AA
Class A-3 $ 58,047,000 7.500% 100.4843750% A2/A
Class A-4 $ 16,124,000 7.600% 100.5000000% A3/A
Class B-1 $ 16,124,000 7.950% 100.4843750% Baa1/BBB+
Class B-2 $ 25,798,000 8.000% 100.5000000% Baa2/BBB
Class B-3 $ 12,899,000 8.238% 99.0468750% Baa3/BBB-
------------------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate principal amount of the relevant
class of Registered Certificates to be purchased. The purchase price for
each class of the Registered Certificates will also include accrued
interest at the initial Pass-Through Rate therefor on the aggregate
principal amount thereof to be purchased from November 1, 2000 to but not
including the Closing Date.
(3) By each of Xxxxx'x Investors Service, Inc. and Fitch, Inc., respectively.
25
EXHIBIT A
OPINION OF XXXXXX & XXXXXX PURSUANT TO SECTION 6(E)
November 7, 2000
DLJ Commercial Mortgage Corp. Xxxxxxx Xxxxx Xxxxxx Inc.
00 Xxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Xxxxx Fargo Bank Minnesota, N.A.
Securities Corporation 00 Xxxxxxxx, 12th Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Prudential Securities Incorporated Xxxxx'x Investors Service, Inc.
One New York Plaza 00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, XX 00000
McDonald Investments Inc. Fitch, Inc.
000 Xxxxxxxx Xxxxxx Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: DLJ Commercial Mortgage Trust 2000-CKP1,
Commercial Mortgage Pass-Through Certificates, Series 2000-CKP1
Ladies and Gentlemen:
We have acted as special counsel to DLJ Commercial Mortgage Corp. (the
"Depositor") with respect to certain matters in connection with the following
transactions (collectively, the "Transactions"):
1. the filing by the Depositor of a registration statement on form S-3 (No.
333-82275) (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), for purposes of registering under the Securities
Act of 1933, as amended (the "1933 Act"), certain offerings of mortgage
pass-through certificates evidencing interests in trust funds established by the
Depositor;
26
2. the sale by Column Financial Inc. ("Column"), and the purchase by the
Depositor, of a segregated pool of multifamily and commercial mortgage loans
(collectively, the "Column Mortgage Loans"), pursuant to the Mortgage Loan
Purchase Agreement, dated as of October 27, 2000 (the "Column Mortgage Loan
Purchase Agreement"), between Column as seller and the Depositor as purchaser;
3. the sale by Prudential Mortgage Capital Funding, LLC ("PMCF"), and the
purchase by the Depositor, of a second segregated pool of multifamily and
commercial mortgage loans ( the "PMCF Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement dated as of October 27, 2000 (the "PMCF Mortgage Loan
Purchase Agreement"), between PMCF as seller, Prudential Mortgage Capital
Company, LLC (PMCC") as the additional party and the Depositor as purchaser;
4. the sale by KeyBank National Association ("KeyBank"), and the purchase
by Depositor, of a third segregated pool of multifamily and commercial mortgage
loans (the "KeyBank Mortgage Loans"), pursuant to the Mortgage Loan Purchase
Agreement dated as of October 27, 2000 (the "KeyBank Mortgage Loan Purchase
Agreement"), between KeyBank as seller and the Depositor as purchaser;
5. the creation of a trust fund (the "Trust Fund"), and the issuance of an
aggregate $1,289,918,771 Certificate Principal Balance of Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1 (the "Certificates"), consisting of
19 classes designated Class S, Class A-1A, Class A-1B, 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, Class B-8, Class B-9, Class C, Class D, Class E, and Class R,
pursuant to the Pooling and Servicing Agreement dated as of November 1, 2000
(the "Pooling and Servicing Agreement"), among the Depositor as depositor, Key
Corporate Capital Inc. d/b/a Key Commercial Mortgage, as master servicer and
special sub-servicer, Midland Loan Services, Inc., as special servicer, and
Xxxxx Fargo Bank Minnesota, N. A., as trustee (the "Trustee");
6. the transfer of the Column Mortgage Loans, the PMCF Mortgage Loans and
the KeyBank Mortgage Loans (collectively, the "Mortgage Loans") by the Depositor
to the Trust Fund, pursuant to the Pooling and Servicing Agreement, in exchange
for the Certificates;
7. the sale by the Depositor, and the purchase by Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation ("DLJSC"), Prudential Securities Incorporated
("Prudential"), Credit Suisse First Boston Corporation ("CSFB"), McDonald
Investments Inc. ("McDonald") and Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI"; and,
collectively with DLJSC, Prudential, CSFB and McDonald, in such capacity, the
"Underwriters") of the Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4,
Class B-1, Class B-2 and Class B-3 Certificates (collectively, the "Publicly
Offered Certificates"), pursuant to the Underwriting Agreement dated as of
October 27, 2000 (the "Underwriting Agreement"), between the Depositor and the
Underwriters; and
8. the sale by the Depositor, and the purchase by DLJSC, Prudential and
CSFB (collectively, in such capacity, the "Placement Agents") of the Class S,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class C, Class
D, Class E and Class R Certificates (collectively, the "Privately Offered
Certificates"), pursuant to the Certificate Purchase Agreement dated as of
October 27, 2000 (the "Certificate Purchase Agreement"), between the Depositor
and the Placement Agents.
The Pooling and Servicing Agreement, the Underwriting Agreement, the
Certificate Purchase Agreement, the Column Mortgage Loan Purchase Agreement, the
PMCF Mortgage Loan Purchase Agreement and the KeyBank Mortgage Loan Purchase
Agreement are collectively referred to
27
herein as the "Agreements". Capitalized terms used but not defined herein have
the respective meanings set forth in the Pooling and Servicing Agreement and, to
the extent not defined therein, in the other Agreements.
For purposes of this opinion letter, we have reviewed:
1. the Agreements;
2. the Registration Statement;
3. the Prospectus, dated October 17, 2000, relating to publicly offered
mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor (the "Basic Prospectus");
4. the Prospectus Supplement, dated October 27, 2000, specifically relating
to the Trust Fund and the Publicly Offered Certificates (the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"); and
5. the Private Placement Memorandum, dated October 27, 2000, relating to
the Trust Fund and certain classes of the Privately Offered Certificates
(including all exhibits and annexes thereto, the "Private Placement
Memorandum").
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such other documents and records as we have
deemed relevant or necessary as the basis for the opinions contained in this
letter; we have obtained such certificates from and made such inquiries of
officers and representatives of the parties to the Agreements and public
officials as we have deemed relevant or necessary as the basis for such
opinions; and we have relied upon, and assumed the accuracy of, such other
documents and records, such certificates and the statements made in response to
such inquiries, with respect to the factual matters upon which the opinions
contained herein are based.
In rendering this opinion letter, we have also assumed (i) the truthfulness
and accuracy of each of the representations and warranties as to factual matters
contained in the Agreements, (ii) the legal capacity of natural persons, (iii)
the genuineness of all signatures, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to authentic originals of all
documents submitted to us as certified, conformed or photostatic copies, (vi)
except to the extent expressly addressed in Paragraph 5 below, the due
organization of all parties to each of the Agreements and the valid existence of
each such party in good standing under the laws of its jurisdiction of
organization, (vii) except to the extent expressly addressed in Paragraphs 5 and
9 below, the power and authority of the parties to each of the Agreements to
enter into, perform under and consummate the transactions contemplated by such
Agreement, without any resulting conflict with or violation of the
organizational documents of any such party or with or of any law, rule,
regulation, order or decree applicable to any such party or its assets, and
without any resulting default under or breach of any other agreement or
instrument by which any such party is bound or which is applicable to it or its
assets, (viii) except to the extent expressly addressed in Paragraph 6 below,
the due authorization by all necessary action, and the due execution and
delivery, of the Agreements by each of the parties thereto, (ix) except to the
extent expressly addressed in Paragraph 7 below, the constitution of each of the
Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (x) compliance with
the Agreements by all parties thereto and, in the case of the Pooling and
Servicing Agreement, by the registered holders and beneficial owners of the
Certificates, and (xi) the absence of
28
any other agreement that supplements or otherwise modifies the intentions and
agreements of the parties to the Agreements, as expressed therein.
Our opinions set forth below with respect to the enforceability of any
agreement or any particular right or obligation under any agreement are subject
to: (1) general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing and the doctrine of estoppel; (2)
the possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law; (3) the
effect of certain laws, rules, regulations and judicial and other decisions upon
the enforceability of (a) any provision that purports to waive (i) the
application of any federal, state or local statute, rule or regulation, (ii) the
application of any general principles of equity or (iii) the obligation of
diligence, (b) any provision that purports to grant any remedies that would not
otherwise be available at law, to restrict access to any particular legal or
equitable remedies, to make any rights or remedies cumulative and enforceable in
addition to any other right or remedy, to provide that the election of any
particular remedy does not preclude recourse to one or more other remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of such rights or remedies, to impose
penalties or forfeitures, or to provide for set-off in the absence of mutuality
between the parties, (c) any provision that purports to release, exculpate or
exempt a party from, or indemnify a party for, liability for any act or omission
on its part that constitutes negligence, recklessness or willful or unlawful
conduct, (d) any provision that purports to govern matters of civil procedure,
including any such provision that purports to establish evidentiary standards,
to waive objections to venue or forum, to confer subject matter jurisdiction on
any court that would not otherwise have such jurisdiction or to waive any right
to a jury trial, or (e) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(4) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (5)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
When used in this opinion, the term "knowledge" or words of similar import
mean the actual knowledge of facts or other information of the Sidley & Austin
attorneys currently practicing law with this firm who have been actively
involved in any material respect in representing the Depositor in connection
with the Transactions. In that regard we have conducted no special or
independent investigation of factual matters in connection with this opinion
letter. We call to your attention that, with your knowledge and consent, such
Xxxxxx & Xxxxxx attorneys have not examined or otherwise reviewed any of the
Mortgage Files, any particular documents contained in such files or any other
documents with respect to the Mortgage Loans for purposes of delivering this
letter.
In rendering this opinion letter, we do not express any opinion concerning
the laws of any jurisdiction other than the laws of the State of New York, the
General Corporation Law of the State of Delaware and, where expressly referred
to below, the federal laws of the United States of America (in each case without
regard to conflicts of law principles). In addition, we do not express any
opinion with respect to the tax, securities or "doing business" laws of any
particular State, including, without limitation, the State of New York, or with
respect to any matter not expressly addressed below.
29
Based upon and subject to the foregoing, we are of the opinion that:
1. The Registration Statement has become effective under the 1933 Act.
2. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose have
been instituted or threatened.
3. 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 we express no opinion),
complied as to form in all material respects with the applicable requirements of
the 1933 Act and the rules and regulations thereunder.
4. To our knowledge, there are no material contracts, indentures or other
documents relating to the Publicly 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.
5. The Depositor 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
the Agreements.
6. Each of the Agreements has been duly authorized, executed and delivered
by the Depositor.
7. Each of the Agreements constitutes a valid, legal and binding agreement
of the Depositor, enforceable against the Depositor in accordance with its
terms.
8. The Certificates, when duly and validly executed, authenticated and
delivered in accordance with the Pooling and Servicing Agreement and paid for in
accordance with the Underwriting Agreement and the Certificate Purchase
Agreement, will be entitled to the benefits of the Pooling and Servicing
Agreement.
9. The execution, delivery and performance of the Agreements by the
Depositor will not conflict with or result in a material breach, violation or
acceleration of or constitute a material default under (a) the terms of any
indenture or other material agreement or instrument known to us (based solely on
a certification by the Depositor) to which the Depositor is a party or by which
it is bound, (b) any term or provision of the certificate of incorporation or
by-laws of the Depositor or (c) any federal or State of New York statute, rule
or regulation of general applicability in transactions of the type contemplated
by the Agreements.
10. No consent, approval, authorization or order of any federal or State of
New York court, agency or other governmental body is required for the
consummation by the Depositor of the transactions contemplated by the terms of
the Agreements, 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 Certificates by the Underwriters and the Placement
Agents, as to which we express no opinion, and except such as have been
obtained.
30
11. 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.
12. The statements set forth in the Prospectus Supplement under the
headings "Description of the Offered Certificates" and "Servicing of the
Underlying Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing Documents",
insofar as such statements purport to summarize certain material provisions of
the Certificates and the Pooling and Servicing Agreement, are accurate in all
material respects.
13. The statements set forth in the Prospectus Supplement under the
headings "ERISA Considerations", "Federal Income Tax Consequences" and "Legal
Investment", in the Basic Prospectus under the headings "ERISA Considerations",
"Federal Income Tax Consequences" and "Legal Investment", and in the Private
Placement Memorandum under the headings "Certain 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 Certificates to all investors, provide in all material respects an
accurate summary of such matters and conclusions set forth under such headings.
14. As described in the Prospectus Supplement and the Private Placement
Memorandum, (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 will be "regular interests", and
the REMIC I Residual Interest will constitute the sole "residual interest", 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 meaning of the
REMIC Provisions, and the REMIC II Regular Interests will be "regular
interests", and the REMIC II Residual Interest will constitute the sole
"residual interest", in REMIC II, and (C) REMIC III will qualify as a REMIC
within the meaning of the REMIC Provisions, and the REMIC III Regular Interest
Certificates will evidence "regular interests", and the REMIC III Residual
Interest will constitute the sole "residual interest", in REMIC III.
15. The respective portions of the Trust consisting of Grantor Trust D,
Grantor Trust E and Grantor Trust R will each be classified as a grantor trust
under subpart E, part I of subchapter J of the Internal Revenue Code of 1986.
16. Assuming (a) the accuracy of the respective representations and
warranties of the Placement Agents and the Depositor contained in the
Certificate Purchase Agreement, (b) the performance by the Placement Agents and
the Depositor of their respective covenants contained in the Certificate
Purchase Agreement, and (c) in the case of each investor that purchases
Privately Offered Certificates from a Placement Agent, the accuracy of the
deemed representations and warranties set forth under the caption "Notice to
Investors" in the Private Placement Memorandum, the offer and sale of the
Privately Offered Certificates by the Depositor to the Placement Agents, and by
the Placement Agents to investors who purchase from them, in the manner
contemplated in the Private Placement Memorandum, the Certificate Purchase
Agreement and the Pooling and Servicing Agreement, are transactions that do not
require registration of the Privately Offered Certificates under the 1933 Act.
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The opinions expressed herein are being delivered to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the legal analysis or conclusions contained herein. This opinion letter
is solely for your benefit in connection with the Transactions and may not be
relied on in any manner for any other purpose or by any other person or
transmitted to any other person without our prior consent.
Very truly yours,
32
EXHIBIT B
LETTER OF SIDLEY & XXXXXX PURSUANT TO SECTION 6(F)
November 7, 2000
DLJ Commercial Mortgage Corp. McDonald Investments Inc.
00 Xxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxxx 00000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Xxxxxxx Xxxxx Xxxxxx Inc.
Securities Corporation 000 Xxxxxxxxx Xxxxxx, 00xx Floor
00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Prudential Securities Incorporated Credit Suisse First Boston Corporation
One New York Plaza 00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Re: DLJ Commercial Mortgage Trust 2000-CKP1, Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1
Ladies and Gentlemen:
We have, with the knowledge and consent of all the parties involved, acted
as special counsel to Column Financial, Inc. ("Column"), DLJ Commercial Mortgage
Corp. (the "Depositor"), Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corp.
("DLJSC"), Prudential Securities Incorporated ("Prudential"), Credit Suisse
First Boston Corporation ("CSFB"), McDonald Investments Inc. ("McDonald") and
Xxxxxxx Xxxxx Xxxxxx Inc. (SSBI") with respect to certain matters in connection
with the following transactions (collectively, the "Transactions"):
1. the filing by the Depositor of a registration statement on Form S-3 (No.
333-82275) (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission"), for purposes of registering under the Securities
Act 1933, as amended (the "Securities Act"), certain offerings of commercial
mortgage pass-through certificates evidencing interests in trust funds
established by the Depositor;
2. the sale by Xxxxxx, and the purchase by the Depositor, of a segregated
pool of multifamily and commercial mortgage loans (collectively, the "Column
Mortgage Loans"), pursuant to the Mortgage Loan Purchase Agreement dated as of
October 27, 2000 (the "Column Mortgage Loan Purchase Agreement"), between Column
as seller and the Depositor as purchaser;
3. the sale by Prudential Mortgage Capital Funding, LLC ("PMCF"), and the
purchase by the Depositor, of a second segregated pool of multifamily and
commercial mortgage loans (the "PMCF Mortgage Loans"), pursuant to the Mortgage
Loan Purchase Agreement dated as of October 27, 2000 (the "PMCF Mortgage Loan
Purchase Agreement"), between PMCF as seller,
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Prudential Mortgage Capital Company, LLC ("PMCC") as the additional party and
the Depositor as purchaser;
4. the sale by KeyBank National Association ("KeyBank"), and the purchase
by the Depositor, of a third segregated pool of multifamily and commercial
mortgage loans (the "KeyBank Mortgage Loans"), pursuant to the Mortgage Loan
Purchase Agreement dated as of October 27, 2000 (the "KeyBank Mortgage Loan
Purchase Agreement"), between KeyBank as seller and the Depositor as purchaser;
5. the creation of a trust fund (the "Trust Fund"), and the issuance of an
aggregate $1,289,918,771 Certificate Principal Balance of Commercial Mortgage
Pass-Through Certificates, Series 2000-CKP1 (the "Certificates"), consisting of
19 classes designated Class S, Class A-1A, Class A-1B, 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, Class B-8, Class B-9, Class C, Class D, Class E and Class R, pursuant
to the Pooling and Servicing Agreement dated as of November 1, 2000 (the
"Pooling and Servicing Agreement"), among the Depositor as depositor, Key
Corporate Capital Inc. d/b/a Key Commercial Mortgage, as master servicer and
special sub-servicer, Midland Loan Services, Inc., as special servicer, and
Xxxxx Fargo Bank Minnesota, N. A., as trustee (in such capacity, the "Trustee");
6. the transfer of the Column Mortgage Loans, the PMCF Mortgage Loans and
the KeyBank Mortgage Loans (collectively, the "Mortgage Loans") by the Depositor
to the Trust Fund, pursuant to the Pooling and Servicing Agreement, in exchange
for the Certificates; and
7. the sale by the Depositor, and the purchase by DLJSC, Prudential, CSFB,
McDonald and SSBI (collectively, in such capacity, the "Underwriters"), of the
Class A-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1, Class B-2
and Class B-3 Certificates (collectively, the "Publicly Offered Certificates"),
pursuant to the Underwriting Agreement dated as of October 27, 2000 (the
"Underwriting Agreement"), between the Depositor and the Underwriters.
The Pooling and Servicing Agreement, the Underwriting Agreement, the Column
Mortgage Loan Purchase Agreement, the PMCF Mortgage Loan Purchase Agreement and
the KeyBank Mortgage Loan Purchase Agreement are collectively referred to herein
as the "Agreements". Capitalized terms not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement and, to the extent not
defined therein, in the other Agreements.
For the purposes of this letter, we have reviewed: the Agreements; the
Registration Statement; the Prospectus, dated October 17, 2000, relating to
publicly offered mortgage pass-through certificates evidencing interests in
trust funds established by the Depositor (the "Basic Prospectus"); and the
Prospectus Supplement, dated October 27, 2000, specifically relating to the
Trust Fund and the Publicly Offered Certificates (the "Prospectus Supplement";
and, together with the Basic Prospectus, the "Prospectus"). In addition, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such other documents and records as we have deemed relevant or
necessary as the basis for rendering this letter; we have obtained such
certificates from and made such inquiries of officers and representatives of the
parties to the Agreements and public officials as we have deemed relevant or
necessary as the basis for rendering this letter; and we have relied upon, and
assumed the accuracy of, such other documents and records, such certificates and
the statements made in response to such inquiries, with respect to the factual
matters upon which the statements made in this letter are based. We have also
assumed (i) the truthfulness and accuracy of each of the representations and
warranties as to factual matters contained in the Agreements, (ii) the legal
capacity of natural persons, (iii) the genuineness of all signatures, (iv) the
authenticity of all documents submitted to us as originals, (v) the
34
conformity to authentic originals of all documents submitted to us as certified,
conformed or photostatic copies, (vi) the due organization of all parties to
each of the Agreements and the valid existence of each such party in good
standing under the laws of its jurisdiction of organization, (vii) the due
authorization by all necessary action, and the due execution and delivery, of
the Agreements by the parties thereto, (viii) the constitution of each of the
Agreements as the legal, valid and binding obligation of each party thereto,
enforceable against such party in accordance with its terms, (ix) compliance
with the Agreements by the parties thereto, (x) the conformity, to the
requirements of the Column Mortgage Loan Purchase Agreement, the PMCF Mortgage
Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement and the
Pooling and Servicing Agreement, of the Mortgage Notes, the Mortgages and the
other documents delivered to the Trustee by, on behalf of, or at the direction
of, the Depositor and Column, (xi) the conformity of the text of each document
filed with the Commission through the Commission's Electronic Data Gathering,
Analysis and Retrieval System to the printed documents reviewed by us, and (xii)
the absence of any other agreement that supplements or otherwise modifies the
intentions and agreements of the parties to the Agreements, as expressed
therein. In making the statements set forth below, we do not express any view
concerning the laws of any jurisdiction other than the federal laws of the
United States of America.
We are delivering this letter in our capacity as special counsel to the
Depositor, Column and the Underwriters. In the course of our acting in such
capacity, we have generally reviewed and discussed with certain representatives
of the Depositor, Column, the Underwriters and the other parties to the
Agreements and their respective counsel (in addition to us) the information set
forth in the Registration Statement and the Prospectus, other than any documents
or information included therein solely by incorporation by reference (all such
documents and information so incorporated by reference shall be referred to
herein as the "Excluded Information"), and we have reviewed certain loan
summaries prepared by Column in respect of the Column Mortgage Loans and, in the
case of each Column Mortgage Loan with a Cut-off Date Balance in excess of $27.5
million, the related Mortgage Note and Mortgage. While we have made no
independent check or verification of, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing, nothing
has come to our attention that causes us to believe that (a) the Registration
Statement (exclusive of the Excluded Information therein, as to which we express
no view or belief), as of its effective date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (b) the Prospectus
(exclusive of the Excluded Information therein, as to which we express no view
or belief), as of the date of the Prospectus Supplement or as of the date
hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except that we express no view or belief as to (x) any financial statements,
schedules and/or other numerical, financial or statistical data set forth or
referred to therein or omitted therefrom or (y) any information contained in or
omitted from the Prospectus regarding the nature and characteristics of the PMCF
Mortgage Loans, the KeyBank Mortgage Loans and/or the Borrowers and Mortgaged
Properties relating to the PMCF Mortgage Loans and the KeyBank Mortgage Loans.
In that connection, we advise you that we have relied, to the extent that we may
properly do so in the discharge of our professional responsibilities as
experienced securities law practitioners, upon the judgment and statements of
officers and representatives of the Depositor, Column and the Underwriters in
connection with the determination of materiality.
When used in this letter, the term "attention" or words of similar import
mean the conscious awareness of facts or other information of the Sidley &
Austin attorneys currently practicing law with this firm who have been involved
in any material respect in representing any of the Depositor,
35
Column or the Underwriters in connection with the Transactions. We call to your
attention that, with your knowledge and consent, except as described above, such
Xxxxxx & Xxxxxx attorneys have not examined or otherwise reviewed any of the
Mortgage Files, any particular documents contained in such files or any other
documents with respect to the Mortgage Loans for purposes of delivering this
letter.
The statements set forth herein are being made to you as of the date
hereof, and we assume no obligation to advise you of any changes of law or fact
that may occur after the date hereof, notwithstanding that such changes may
affect the views or belief expressed herein. This letter is being delivered
solely for the benefit of the persons to which it is addressed in connection
with the Transactions. It may not be quoted, filed with any governmental
authority or other regulatory agency or otherwise circulated or utilized for any
other purpose without our prior written consent.
Very truly yours,
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