ASSET SECURITIZATION CORPORATION
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-MD VII, CLASS A-1A, CLASS A-1B, CLASS PS-1, CLASS CS-1,
CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5 AND CLASS A-6
UNDERWRITING AGREEMENT
New York, New York
March 20, 1997
Nomura Securities International, Inc.
2 World Financial Center - Building B
New York, New York 10281-1198
Ladies and Gentlemen:
Asset Securitization Corporation, a Delaware
corporation (the "Company"), proposes to sell, pursuant to the
terms of this Underwriting Agreement (this "Agreement"), to
Nomura Securities International, Inc. (the "Underwriter"), Asset
Securitization Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1997-MD VII, Class A-1A, Class A-1B, Class
PS-1, Class CS-1, Class A-2, Class A-3, Class A-4, Class A-5 and
Class A-6 Certificates, in the original Certificate Balances set
forth in Schedule I hereto (collectively, the "Offered
Certificates"). The Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1997-MD VII, will also
consist of the Class B-1, Class B-1H, Class V-1, Class V-2, Class
R and Class LR Certificates (the "Private Certificates" and
together with the Offered Certificates, the "Certificates"). The
Certificates will be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") to be dated as
of March 27, 1997, by and among the Company, as depositor,
Pacific Mutual Life Insurance Company, as servicer (the
"Servicer"), LaSalle National Bank, as trustee (the "Trustee"),
and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent").
Each Certificate will evidence a fractional, undivided beneficial
ownership interest in a trust fund (the "Trust Fund") consisting
primarily of a mortgage pool (the "Mortgage Pool") consisting of
7 fixed-rate mortgage loans, with original terms to maturity of
not more than 30 years (the "Mortgage Loans"), secured by first
liens on 71 commercial properties. The Offered Certificates are
described more fully in Schedule I hereto and in a Prospectus
Supplement dated March 20, 1997 (the "Prospectus Supplement") and
Prospectus dated March 20, 1997 (the "Prospectus" and with the
Prospectus Supplement, the "Final Prospectus") furnished to the
Underwriter by the Company.
Elections will be made to treat designated portions of
the Trust Fund, exclusive of the Reserve Accounts, Lock Box
Accounts, Cash Collateral Accounts, the Certificate Distribution
Account, the Excess Interest, the Xxxxxx Treasury Collateral
Account, the Excess Interest Distribution Account, the Default
Interest and the Default Interest Distribution Account (such
portions of the Trust Fund, the "Trust REMICs"), and the Trust
REMICs will qualify, as two separate "real estate mortgage
investment conduits" (each, a "REMIC" or, alternatively, the
"Upper-Tier REMIC" and the "Lower-Tier REMIC," respectively) for
federal income tax
purposes. The Class R and Class LR Certificates will constitute
the sole classes of "residual interests" in the Upper-Tier REMIC
and the Lower-Tier REMIC, respectively. The Class V-1
Certificates will represent the right to receive Net Default
Interest and the Class V-2 Certificates will represent the right
to receive Excess Interest, which portions of the Trust Fund will
be treated as a grantor trust for federal income tax purposes.
The Mortgage Loans will be purchased by the Company
from Nomura Asset Capital Corporation, a Delaware corporation
("NACC"), pursuant to a Mortgage Loan Purchase and Sale Agreement
(the "Mortgage Loan Purchase and Sale Agreement"), to be dated as
of the Cut-off Date between the Company and NACC.
Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to them in the
Pooling and Servicing Agreement.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, the Underwriter that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement,
with exhibits thereto, on Form S-3 (File No. 33-99502) (the
"Registration Statement") for the registration of Commercial
Mortgage Pass-Through Certificates, issuable in series, including
the Offered Certificates, under the Securities Act of 1933, as
amended (the "1933 Act"), which Registration Statement has become
effective and copies of which have heretofore been delivered to
the Underwriter. The Company meets the requirements for use of
Form S-3 under the 1933 Act, and such Registration Statement
meets the requirements set forth in Rule 415(a)(1)(x) under the
1933 Act and complies in all other material respects with the
1933 Act and the rules and regulations thereunder. The Company
filed on March 17, 1997, with the Commission, with the
Underwriter's consent, a preliminary prospectus supplement and
prospectus dated March 14, 1997 (the "Preliminary Prospectus")
and will file by March 25, 1997 with the Commission, with the
Underwriter's consent, the Final Prospectus, in each case
pursuant to Rule 424(b)(5) under the 1933 Act and in each case
relating to the Offered Certificates and the plan of distribution
thereof, and has previously advised the Underwriter of all
further information (financial and other) with respect to the
Offered Certificates and the Mortgage Pool to be set forth
therein. The Company has filed with the Commission on Form 8-K on
each of February 25, 1997 and February 26, 1997 Collateral Term
Sheets (as defined below) provided to it by the Underwriter
pursuant to Section 4(b)(iv) hereof. Subject to the Underwriter's
compliance with its obligations pursuant to Section 4(b), the
Company shall file any other Marketing Materials (as defined
herein) provided to it by the Underwriter under Section 4(b)(iv)
hereof with the Commission on Form 8-K in accordance with the
provisions of such Section. The Company also will file with the
Commission within fifteen days of the issuance of the
Certificates a Current Report on Form 8-K setting forth specific
information concerning the Mortgage Pool and the Offered
Certificates to the extent that such information is not set forth
in the Final Prospectus.
(b) As of (i) the date hereof, (ii) the date on
which the Final Prospectus is first filed pursuant to Rule
424(b)(5) under the 1933 Act, (iii) the date on which, prior to
the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective, (iv) the date on which
any amendment or supplement to the Final Prospectus is filed
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with the Commission and (v) the Closing Date, (x) the
Registration Statement, as amended as of any such time, and the
Final Prospectus, as amended or supplemented as of any such time,
complies and will comply in all material respects with the
applicable requirements of the 1933 Act and the rules and
regulations thereunder, (y) the Registration Statement, as
amended as of any such time, does not contain and will not
contain any untrue statement of a material fact and does not omit
and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein not misleading and (z) the Final Prospectus, as amended
or supplemented as of any such time, does not contain and will
not contain any untrue statement of a material fact and does not
omit and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes
no representations or warranties as to statements contained in or
omitted from the Registration Statement and any amendment thereto
or the Final Prospectus and any amendment or supplement thereto
made in reliance upon and in conformity with either any
information in any Marketing Materials required to be provided by
the Underwriter to the Company pursuant to Section 4(b) hereof or
any information furnished in writing to the Company by the
Underwriter specifically for use in the Registration Statement or
any amendment thereto and the Final Prospectus or any amendment
or supplement thereto.
(c) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware and has full power and authority
(corporate and other) and all requisite approvals, orders,
licenses, certificates and permits of and from all governmental
or regulatory officials and bodies necessary to own its
properties and to conduct its business as described in the
Registration Statement and Final Prospectus and to enter into and
perform its obligations under this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase and Sale
Agreement; all such authorization, approvals, orders, licenses,
certificates and permits are in full force and effect and contain
no unduly burdensome provisions; and, except as otherwise set
forth or contemplated in the Registration Statement or the Final
Prospectus, there are no legal or governmental proceedings
pending or, to the best knowledge of the Company, threatened that
would result in a material modification, suspension or revocation
thereof.
(d) As of (i) the date hereof, (ii) the date on
which the Final Prospectus is first filed pursuant to Rule
424(b)(5) under the 1933 Act, (iii) the date on which, prior to
the Closing Date, any post-effective amendment to the
Registration Statement becomes effective, (iv) the date on which
any amendment or supplement to the Final Prospectus is filed with
the Commission and (v) the Closing Date, there has not and will
not have been (x) any request by the Commission for any further
amendment to the Registration Statement or any amendment or
supplement to the Final Prospectus or for any additional
information, (y) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose or (z)
any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any
jurisdiction or any initiation or threat of any proceeding for
such purpose.
(e) This Agreement has been duly authorized,
executed and delivered by the Company. Each of the Pooling
and Servicing Agreement and the Mortgage Loan Purchase
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and Sale Agreement, when executed and delivered as contemplated
hereby, will have been duly authorized, executed and delivered by
the Company. Each of the Pooling and Servicing Agreement and the
Mortgage Loan Purchase and Sale Agreement, when so executed and
delivered, will constitute the legal, valid, binding and
enforceable agreement of the Company, subject as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at
law.
(f) As of the Closing Date, the Offered
Certificates, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase and Sale Agreement will each conform in
all material respects to the respective descriptions thereof
contained in the Final Prospectus. As of the Closing Date, the
Offered Certificates will be duly and validly authorized and,
when duly and validly executed, countersigned and delivered in
accordance with the Pooling and Servicing Agreement and delivered
to the Underwriter against payment therefor as provided herein,
will be duly and validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement.
(g) As of the Closing Date, each of the Mortgage
Loans will meet, in all material respects, the description
thereof in the Final Prospectus, and on the Closing Date, the
Company (pursuant to the Pooling and Servicing Agreement) will
assign to the Trustee for the benefit of the Certificateholders,
certain representations and warranties with respect to the
Mortgage Loans made by NACC to the Company in the Mortgage Loan
Purchase and Sale Agreement, and the representations and
warranties will be true and correct in all material respects.
(h) 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.
(i) The Company is not in violation of its
certificate of incorporation or by-laws or in default under any
agreement, indenture or instrument, the effect of which violation
or default would be material to the Company. Neither the issuance
and sale of the Offered Certificates, nor the execution and
delivery by the Company of this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase and Sale
Agreement, nor the consummation by the Company of any of the
transactions herein or therein contemplated, nor compliance by
the Company with the provisions hereof or thereof, does or will
conflict with or result in a breach of any term or provision of
the certificate of incorporation or by-laws of the Company or
conflict with, result in a breach, violation or acceleration of,
or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company is a party or
by which it is bound, or any statute, order or regulation
applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Company. The Company is not 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 that
materially and adversely affects, or may in the future materially
and adversely affect, (i) the ability of the Company to perform
its obligations under this Agreement, the Pooling and Servicing
4
Agreement or the Mortgage Loan Purchase and Sale Agreement or
(ii) the business, operations, financial conditions, properties
or assets of the Company.
(j) There are no actions or proceedings against,
or investigations of, the Company pending, or, to the knowledge
of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the Pooling and Servicing
Agreement, the Mortgage Loan Purchase and Sale Agreement or the
Offered Certificates, (ii) seeking to prevent the issuance of the
Offered Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase and Sale
Agreement, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase and Sale
Agreement or the Offered Certificates or (iv) seeking to affect
adversely the federal income tax attributes of the Offered
Certificates as described in the Final Prospectus.
(k) Any taxes, fees and other governmental
charges in connection with the execution and delivery of this
Agreement, the Pooling and Servicing Agreement and the Mortgage
Loan Purchase and Sale Agreement or the execution, delivery and
sale of the Offered Certificates have been or will be paid at or
prior to the Closing Date.
(l) Neither the Company nor the Trust Fund is,
and neither the issuance and sale of the Offered Certificates in
the manner contemplated by the Final Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to
be, an "investment company" or under the control of an
"investment company" as such terms are defined in the Investment
Company Act of 1940, as amended.
(m) Upon execution and delivery to the Trustee of
the Pooling and Servicing Agreement, payment by the Underwriter
for the Offered Certificates, and delivery to the Underwriter of
the Offered Certificates, the Trust Fund will own the Mortgage
Loans and the Underwriter will acquire title to the Offered
Certificates, in each case free of liens except to the extent
permitted by the Pooling and Servicing Agreement.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties set forth herein, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the
Company, on the Closing Date, the Offered Certificates at 101.5%
of the initial Certificate Balances set forth in Schedule I
hereto, plus accrued interest, if any, at the related
Pass-Through Rates from the Cut-off Date up to, but not
including, the Closing Date.
3. Delivery and Payment. Delivery of the Offered
Certificates shall be made in book-entry form (the "Book-Entry
Certificates") through the facilities of The Depository Trust
Company ("DTC") in the United States and Centrale de Livraison de
Valeurs Mobiliers S.A. ("CEDEL") and The Euroclear System
("Euroclear") in Europe, on or about March 27, 1997 (the
"Closing Date") and payment thereof will be made at the
offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York City time.
5
Delivery of the Offered Certificates shall be made to the
Underwriter against payment by the Underwriter of the purchase
price therefor in immediately available funds wired to such bank
as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and the Underwriter.
Each of the Book-Entry Certificates to be so delivered shall be
represented by certificates registered in the name of Cede & Co.,
as nominee of DTC. The interests of beneficial owners of the
Book-Entry Certificates will be represented by book entries on
the records of DTC and participating members thereof. Definitive
certificates representing the Book-Entry Certificates will be
available only under limited circumstances.
The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by the
Underwriter in New York, New York, not later than 10:00 a.m.
on the business day prior to the Closing Date.
4. Offering by Underwriter.
(a) It is understood that the Underwriter
proposes to offer the Offered Certificates for sale to the public
as set forth in the Final Prospectus.
(b) It is understood that the Underwriter may
prepare and provide to prospective investors certain Marketing
Materials in connection with the Underwriter's offering of the
Offered Certificates, subject to the following conditions:
(i) The Underwriter shall comply
with all applicable laws and
regulations in connection
with the use of Marketing
Materials, including the No-
Action Letter of May 20, 1994
issued by the Commission to
Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx,
Peabody & Co. Incorporated and
Xxxxxx Structured Asset Corpor-
ation, as made applicable to
other issuers and underwrit-
ers by the Commission in
response to the request of
the Public Securities Association
dated May 24, 1994 (collective-
ly, the "Xxxxxx/PSA Letter")
and the No-Action Letter of
February 17, 1995 issued by
the Commission to Public Secur-
ities Association regarding
the distribution of ABS Term
Sheets (as defined below) in
response to its request dated
February 13, 1995 (the "PSA
Letter").
(ii) For purposes hereof, "Computational
Materials" has the meaning set forth in
the Xxxxxx/PSA Letter and each of
"Collateral Term Sheets" and
"Structural Term Sheets" (together, the
"ABS Term Sheets") has the meaning set
forth in the PSA Letter (the ABS Term
Sheets and the Computational Materials,
collectively, the "Marketing
Materials").
6
(iii) All Marketing Materials provided
to prospective investors shall bear the
legend previously agreed to by the
Company and the Underwriter.
The Company shall have the right to
require additional specific legends or
notations to appear on any Marketing
Materials, the right to require changes
regarding the use of terminology and
the right to determine the types of
information appearing therein.
(iv) The Underwriter shall provide to the
Company, for filing on Form 8-K, copies
(in such format as required by the
Company so as to permit filing thereof
by the Company) of all Marketing
Materials that are required to be filed
with the Commission pursuant to the
Xxxxxx/PSA Letter and the PSA Letter.
The Underwriter shall provide copies of
all Collateral Term Sheets required to
be filed under the PSA Letter to the
Company no later than 12:00 p.m. New
York City time on the business day
immediately following the date on which
any Collateral Term Sheet was first
delivered to a prospective investor in
the Offered Certificates. The
Underwriter shall provide copies of all
Computational Materials and Structural
Term Sheets required to be filed under
the Xxxxxx/PSA Letter and the PSA
Letter to the Company not later than
12:00 p.m. New York City time on the
date that the Prospectus Supplement is
dated; provided that if any Compu-
tational Materials or Structural Term
Sheets not previously filed with the
Commission are distributed to
prospective investors in connection
with the Underwriter's offering of the
Offered Certificates, subsequent to the
availability of the Final Prospectus
but prior to the sending or giving of
the Final Prospectus, the Underwriter
shall provide copies of such materials
to the Company no later than 12:00 p.m.
New York City time on the business day
immediately following the date on which
such materials were first delivered to
such investors. The Underwriter may, or
if requested by the Company shall,
provide copies of Computational
Materials and Structural Term Sheets in
a consolidated or aggregated form
including all information required to
be filed.
(v) (a) All information included in the
Computational Materials shall be
generated based on the same methodology
and assumptions that are used to
generate the information in the
Prospectus Supplement as set forth
therein (except with respect to Mortgage
Pool parameters or Offered Certificate
7
structuring terms that were revised
prior to the printing of the
Prospectus); provided, that the
Computational Materials may include
information based on alternative
assumptions if so specified; and (b)
all information included in the ABS
Term Sheets shall be of the type which
would otherwise be included in the
Prospectus Supplement.
(vi) The Company shall file all Collateral
Terms Sheets with the Commission on
Form 8-K no later than the end of the
business day immediately following the
day on which the Company received such
materials from the Underwriter pursuant
to this Section 4(b), in accordance
with the requirements of the PSA
Letter. The Company shall file all
Structural Term Sheets and
Computational Materials received from
the Underwriter pursuant to this
Section 4(b) with the Commission on
Form 8-K concurrently or shortly before
the filing of the Final Prospectus with
the Commission under Rule 424(b)(5), in
accordance with the requirements of the
Xxxxxx/PSA Letter and the PSA Letter;
provided that in the case of any
Structural Term Sheets and
Computational Materials distributed to
prospective investors subsequent to the
availability of the Final Prospectus,
as described in Section 4(b)(iv), the
Company shall file such Marketing
Materials no later than the end of the
business day immediately following the
day on which the Company received such
materials from the Underwriter. The
Company shall not be obligated to file
any Marketing Materials that have been
determined to contain any material
error or omission. In the event that
any Marketing Materials are not filed
by the Company pursuant to the
preceding sentence, or are filed with
the Commission as described herein and
are subsequently determined to contain
a material error or omission, the
Underwriter shall prepare a corrected
version of such Marketing Materials,
shall circulate such corrected
Marketing Materials to all recipients
of the prior versions thereof and shall
deliver copies of such corrected
Marketing Materials (marked "as
corrected") to the Company for filing
with the Commission in a subsequent
Form 8-K submission.
(vii) If the Underwriter does not provide
any Marketing Materials to the Company
pursuant to subsection (iv) above, the
Underwriter shall be deemed to have
represented, as of the Closing Date,
that it has not provided any actual or
prospective investors with any
information in written or electronic
form in connection with the offering of
8
the Certificates that is required to be
filed with the Commission in accordance
with the Xxxxxx/PSA Letter and the PSA
Letter.
(viii) In the event of any delay in the
delivery by the Underwriter to the
Company of Marketing Materials, if any,
required to be delivered in accordance
with subsection (iv) above, the Company
shall have the right to delay the
release of the Prospectus to investors
or to the Underwriter, to delay the
Closing Date and to take other
appropriate actions.
(ix) The Underwriter represents that it has
in place, and covenants that it shall
maintain, internal controls and
procedures sufficient to ensure full
compliance with all applicable legal
requirements (including the Xxxxxx/PSA
Letter and the PSA Letter), and all
provisions of this Agreement, with
respect to the generation and use of
Marketing Materials in connection with
the offering of the Offered
Certificates.
(x) The Underwriter represents
that (i) as of the date of the
delivery of any Marketing
Materials provided to the
Company, (ii) as of the date
hereof, (iii) as of the date on
which, prior to the Closing
Date, any amendment or
supplement to the Final
Prospectus is filed with the
Commission, and (iv) as
of the Closing Date, the
Underwriter has complied
with all of its obligations
hereunder including this Sec-
tion 4 and, with respect to all
Marketing Materials provided
by the Underwriter to the
Company pursuant to this
Section 4(b), if any, such
Marketing Materials did not,
do not and will not contain any
untrue statement of a material
fact and, when read in
conjunction with the Final
Prospectus, do not omit and will
not omit to state any material
fact required to be stated
therein or necessary in order
to make the statements therein
not misleading; provided,
however, that the Underwriter
makes no such representation
to the extent that any such
untrue statement or alleged
untrue statement or omission or
alleged omission was made
therein in reliance upon and in
conformity with written infor-
mation furnished by the
Company to the Underwriter.
The Underwriter also
represents that the Marketing
Materials, if any, provided by
the Underwriter to the
Company constitute and will
constitute a complete set
of all Marketing Materials
required to be filed with
the Commission.
9
(c) The Underwriter agrees that it will not offer
or sell the Class A-2, Class A-3, Class A-4, Class A-5 or Class A-6
Certificates in a manner that would cause the assets of the Trust
Fund to be regarded as plan assets and subject to the fiduciary
responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or the prohibited
transaction provisions of the Internal Revenue Code of 1986, as
amended (the "Code") or any federal, state or local law ("Similar
Law") which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code, give rise to a fiduciary duty
under ERISA, Section 4975 of the Code or Similar Law on the part
of the Company, the Servicer or the Trustee or constitute a
prohibited transaction under ERISA or Section 4975 of the Code or
Similar Law.
5. Covenants of the Company. The Company covenants
and agrees with the Underwriter that:
(a) The Company has prepared the Prospectus
Supplement which sets forth the amount of Offered Certificates
covered thereby and the terms thereof not otherwise specified in
the Prospectus, the price at which such Offered Certificates are
to be purchased from the Company, the method by which the price
at which such Offered Certificates are to be sold will be
determined, the selling concessions and reallowances, if any, and
such other information as the Underwriter and the Company may
deem appropriate in connection with the offering of the Offered
Certificates. The Company will promptly advise the Underwriter or
counsel for the Underwriter (i) when the Final Prospectus shall
have been filed or transmitted to the Commission for filing
pursuant to Rule 424(b)(5), (ii) when any amendment to the
Registration Statement shall have become effective (unless such
amendment does not relate to the Offered Certificates) or any
further amendment to the Registration Statement (unless such
amendment does not relate to the Offered Certificates) or any
amendment or supplement to the Final Prospectus shall have been
filed with the Commission, (iii) of any proposal or request to
amend the Registration Statement (unless such amendment does not
relate to the Offered Certificates) or amend or supplement the
Final Prospectus or any request by the Commission for any
additional information (unless such request does not relate to
the Offered Certificates), (iv) when notice is received from the
Commission that any post-effective amendment to the Registration
Statement has become or will become effective (unless such
amendment does not relate to the Offered Certificates), (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective
amendment thereto or the institution or threatening of any
proceeding for that purpose (unless such stop order does not
relate to the Offered Certificates), (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any
jurisdiction or the institution or threatening of any proceeding
for that purpose and (vii) of the occurrence of any event that
would cause the Registration Statement, as then in effect, to
contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that
would cause the Final Prospectus, as then in effect, to contain
an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company will use
its best efforts to prevent the issuance of any such stop order
or suspension and, if issued, to obtain as soon as possible the
withdrawal thereof. The Company will not file any amendment to
the Registration Statement or any amendment or supplement to the
Final Prospectus unless the Company has furnished a copy
10
to the Underwriter for its review prior to filing (unless such
amendment or supplement does not relate to the Offered
Certificates) and will not file any such proposed amendment or
supplement to which the Underwriter reasonably objects. Subject
to the foregoing sentence, the Company will cause the Final
Prospectus to be transmitted to the Commission for filing
pursuant to Rule 424(b)(5) under the 1933 Act or will cause the
Final Prospectus to be filed with the Commission pursuant to said
Rule 424(b)(5).
(b) If, at any time when a prospectus relating to
the Offered Certificates is required to be delivered under the
1933 Act, any event occurs as a result of which the Final
Prospectus, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the 1933
Act or the rules and regulations thereunder, the Company promptly
will prepare and file with the Commission, at the expense of the
Company, subject to paragraph (a) of this Section 5, an amendment
or supplement that will correct such statement or omission or an
amendment or supplement 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, the
Company will use its best efforts to cause such post-effective
amendment to the Registration Statement to be made effective as
soon as possible.
(c) The Company will furnish to the Underwriter
and to counsel for the Underwriter, without charge, signed copies
of the Registration Statement (including all exhibits thereto and
documents incorporated by reference therein) and each
post-effective amendment thereto which shall become effective on
or prior to the Closing Date and, so long as delivery of a
prospectus by the Underwriter or dealer may be required by the
1933 Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), as many copies of the Final Prospectus and any
amendments and supplements thereto as may be reasonably
requested.
(d) The Company agrees that, so long as the
Offered Certificates shall be outstanding, it will deliver to the
Underwriter the annual statement as to compliance delivered to
the Trustee and the Company pursuant to Section 3.14 of the
Pooling and Servicing Agreement and the annual statement of a
firm of independent public accountants delivered to the Trustee
and the Company pursuant to Section 3.15 of the Pooling and
Servicing Agreement, as soon as such statements are furnished to
the Company.
(e) The Company will furnish such information, execute
such instruments and take such action, if any, as may be required to
qualify the Offered Certificates for sale under the laws of such
jurisdiction as the Underwriter may designate and will maintain
such qualifications in effect so long as required for the
distribution of the Offered Certificates; provided, however, that
the Company shall not be required to qualify to do business in
any jurisdiction where it is not now 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 subject to such
service of process.
11
(f) The Company will pay all costs and expenses in
connection with the transactions herein contemplated, including, but
not limited to, the fees and disbursements of its counsel; the costs
and expenses of printing (or otherwise reproducing) and delivering the
Pooling and Servicing Agreement and the Offered Certificates; the fees,
costs and expenses of the Trustee (to the extent permitted under
the Pooling and Servicing Agreement, and except to the extent
that another party is obligated to pay such amounts thereunder);
the fees and disbursements of accountants for the Company; the
costs and expenses in connection with the qualification or
exemption of the Offered Certificates under state securities or
"blue sky" laws (including filing fees and reasonable fees and
disbursements of counsel in connection therewith), the
preparation of any blue sky survey, any determination of the
eligibility of the Offered Certificates for investment by
institutional investors and the preparation of any legal
investment survey; the expenses of printing any such blue sky
survey and legal investment survey; the cost and expenses in
connection with the preparation, printing and filing of any
post-effective amendment to the Registration Statement (including
exhibits thereto), and any supplement or amendment to the Final
Prospectus, the preparation and printing of this Agreement and
the delivery to the Underwriter of such copies of the Final
Prospectus as it may reasonably request; and the fees of rating
agencies. Except as provided in Sections 7 and 9(b), the
Underwriter shall be responsible for paying all costs and
expenses incurred by it in connection with the purchase and sale
of the Offered Certificates, including the fees of its counsel.
(g) So long as any of the Offered Certificates
are outstanding, the Company will furnish to the Underwriter (i)
as soon as practicable after the end of each fiscal year all
documents required to be distributed to Certificateholders or
filed with the Commission pursuant to the 1934 Act, or any order
of the Commission thereunder and (ii) from time to time, any
other information concerning the Company filed with any
government or regulatory authority which is otherwise publicly
available, as the Underwriter reasonably requests.
(h) To the extent, if any, that the ratings
provided with respect to the Offered Certificates by the Rating
Agencies that initially rate the Offered Certificates are
conditional upon the furnishing of documents or the taking of any
other actions by the Company, the Company shall use its best
efforts to furnish such documents and take any such other
actions.
(i) The Company will enter into the Mortgage Loan
Purchase and Sale Agreement and the Pooling and Servicing
Agreement on or prior to the Closing Date.
6. Conditions to the Obligation of the Underwriter.
The obligation of the Underwriter hereunder to purchase the
Offered Certificates shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof and as of the date of the
effectiveness of any post-effective amendment to the Registration
Statement or any amendment or supplement to the Final Prospectus
filed prior to the Closing Date and as of the Closing Date, to
the accuracy of the statements of the Company made in any
certificates delivered pursuant to the provisions hereof, to the
performance by the Company in all material respects of its
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall remain
effective and no stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
12
have been issued and not withdrawn and no proceedings for that
purpose shall have been instituted or threatened; and the Final
Prospectus shall have been filed or transmitted for filing with
the Commission in accordance with Rule 424(b)(5) under the 1933
Act.
(b) The Company shall have delivered to the
Underwriter a certificate of the Company, signed by the President
or a Vice President or an Assistant Vice President or an
attorney-in-fact of the Company and dated the Closing Date, to
the effect that the signer of such certificate has carefully
examined the Registration Statement, the Final Prospectus and
this Agreement and that: (i) the representations and warranties
of the Company in this Agreement are true and correct in all
material respects as of the Closing Date with the same effect as
if made on the Closing Date; (ii) the Company has complied with
all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened; and (iv) nothing has come to the attention of the
signer that would lead the signer to believe that the Final
Prospectus contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading,
except that no such representation or warranty shall be required
as to statements contained in or omitted from the Final
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter
specifically for use in the Final Prospectus and any amendment or
supplement thereto.
(c) The Underwriter shall have received from each
of (i) Xxxxx Xxxx, Esq., in-house counsel to the Company, and
(ii) Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, special counsel for the
Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to counsel for the
Underwriter.
With respect to such opinions, each counsel: (1) may
express its reliance as to factual matters on the representations
and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
and Sale Agreement; (2) may assume the due authorization,
execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company (except
that Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx may rely upon the opinion
of Xxxxx Xxxx, Esq. as to due authorization and execution); (3)
may qualify such opinion only as to the federal laws of the
United States of America, the laws of the State of New York and
the General Corporation Law of the State of Delaware; and (4)
may, to the extent necessary, rely as to the laws of states other
than New York on the opinion of local counsel. Such counsel shall
also confirm that the Underwriter may rely, on and as of the
Closing Date, on any opinion or opinions of such counsel
submitted to the Rating Agencies rating the Offered Certificates
as if addressed to the Underwriter and dated the Closing Date.
(d) The Underwriter shall have received from
Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel for the Underwriter,
such opinion, dated the Closing Date, with respect to the
issuance and sale of the Offered Certificates, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase and Sale
Agreement, this Agreement, the Registration Statement, the Final
13
Prospectus and other related matters as the Underwriter may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(e) The Underwriter shall have received from
Price Waterhouse, certified public accountants, a letter dated
the date hereof and satisfactory in form and substance to the
Underwriter and counsel for the Underwriter, to the effect that
such accountants have performed certain specified procedures as a
result of which they confirmed certain information of an
accounting, financial or statistical nature set forth in the
Final Prospectus.
(f) The Offered Certificates shall have been
rated not lower than the required ratings set forth in Schedule I
hereto by each of Duff & Xxxxxx Credit Rating Co. ("DCR"),
Standard & Poor's Ratings Group ("S&P"), Fitch Investors Service,
L.P. ("Fitch") and Xxxxx'x Investors Service, Inc. ("Xxxxx'x"),
and as of the Closing Date, such ratings shall not have been
rescinded and there shall not have been any downgrading, or
public notification of a possible downgrading, or public
notification of a possible change without indication of
direction.
(g) The Underwriter shall have received from
counsel for the Trustee a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter, to the effect that the Pooling and
Servicing Agreement has been duly authorized, executed and
delivered by the Trustee and constitutes the legal, valid,
binding and enforceable agreement of the Trustee, subject as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights in
general and by general principles of equity regardless of whether
enforcement is considered in a proceeding in equity or at law,
and as to such other matters as may be agreed upon by the
Underwriter and the Trustee.
(h) The Underwriter shall have received from
counsel for the Fiscal Agent a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter, to the effect that
the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Fiscal Agent and constitutes the
legal, valid, binding and enforceable agreement of the Fiscal
Agent, subject as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding
in equity or at law, and as to such other matters as may be
agreed upon by the Underwriter and the Fiscal Agent.
(i) The Underwriter shall have received from
counsel for the Servicer a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter, to the effect that the Pooling and
Servicing Agreement has been duly authorized, executed and
delivered by the Servicer and constitutes the legal, valid,
binding and enforceable agreement of the Servicer, subject as to
enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights in
general and by general principles of equity regardless of whether
enforcement is considered in a proceeding in equity or at law,
and as to such other matters as may be agreed upon by the
Underwriter and the Servicer. With respect to such opinion,
such counsel (a) may express its reliance as to factual
14
matters on the representations and warranties made by, and on
certificates or other documents furnished by officers of, the
parties to this Agreement and the Pooling and Servicing
Agreement, (b) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by
the parties thereto other than the Servicer and (c) may qualify
such opinion only as to the laws of the State of New York, the
federal laws of the United States of America and the General
Corporation Law of the State of Delaware.
(j) As of the Closing Date, the Underwriter shall
have received any opinions of counsel the Company supplied to the
Rating Agencies in connection with the transactions contemplated
herein, addressed to the Underwriter and dated the Closing Date.
(k) All proceedings in connection with the
transactions contemplated by this Agreement and all documents
incident hereto shall be satisfactory in form and substance to
the Underwriter and counsel for the Underwriter, and the
Underwriter and such counsel shall have received such
information, certificates and documents as the Underwriter or
such counsel may have reasonably requested.
(l) The sale at or prior to the Closing Date of
the Private Certificates to Nomura Securities International, Inc.
(in such capacity, the "Purchaser") pursuant to the Purchase
Agreement, dated the date hereof between the Purchaser and the
Company, shall have occurred.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement, if the Company is in breach of any
covenants or agreements contained herein or if any of the
opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel
for the Underwriter, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior
to, the Closing Date by the Underwriter. Notice of such
cancellation shall be given to the Company in writing, or by
telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the
sale of the Offered Certificates provided for herein is not
consummated because any condition to the obligation of the
Underwriter set forth in Section 6 is not satisfied or because of
any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof,
other than by reason of a default by the Underwriter, the Company
will reimburse the Underwriter, upon demand, for all
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by it in
connection with the proposed purchase and sale of the Offered
Certificates.
8. Indemnification and Contribution. The Company agrees
with the Underwriter that:
(a) The Company will indemnify and hold harmless the
Underwriter and each person who controls the Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all losses, claims, damages or liabilities, joint or
15
several to which they may become liable under the 1933 Act, the
1934 Act, or other federal or state law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Final Prospectus or in any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
agrees to reimburse such indemnified party for any legal or other
expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company as herein
stated by the Underwriter specifically for use in connection with
the preparation thereof or any information in any Marketing
Materials required to be provided by the Underwriter to the
Company pursuant to Section 4(b) hereof. This indemnity will be
in addition to any liability that the Company may otherwise have.
(b) The Underwriter will indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the
foregoing indemnity from the Company to the Underwriter, but only
with reference to written information furnished to the Company as
herein stated by or on behalf of the Underwriter specifically for
use in connection with the preparation of the documents referred
to in the foregoing indemnity. This indemnity will be in addition
to any liability that the Underwriter may otherwise have. The
Company and the Underwriter each acknowledge that the statements
set forth in the sixth, seventh and eighth paragraphs of the
cover of the Final Prospectus, and under the heading "Method of
Distribution" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the
Underwriter for inclusion in the documents referred to in the
foregoing indemnity.
(c) Promptly after receipt by an indemnified
party under this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it
may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled (i)
to participate therein, and (ii) 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 the indemnified party or parties shall
have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that 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
16
receipt of notice from the indemnifying party to such indemnified
party of its election to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more
than one separate counsel, approved by the Underwriter in the
case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to
such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause
(i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to an indemnified
party under this Section 8, then the Company and the Underwriter
shall contribute to the amount paid or payable by such
indemnified party as a result of the aggregate losses, claims,
damages and liabilities referred to in paragraph (a) or (b)
above, in such proportion as is appropriate to reflect (i) the
relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the Offered
Certificates and (ii) the relative fault of the Company on the
one hand and the Underwriter on the other in connection with the
statement or omission that resulted in such losses, claims,
damages and liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and
the Underwriter shall be deemed to be in the same proportion as
the total proceeds from the offering of the Offered Certificates
(before deducting expenses) received by the Company (as set forth
on the cover page of the Final Prospectus) bear to the total
underwriting discounts and commissions (before deducting
expenses) received by the Underwriter with respect to such
offering. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the
Underwriter agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be
determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this
paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending against any action or
claim which is the subject of this paragraph (d). Notwithstanding
the provisions of this paragraph (d), the Underwriter shall not
be required to contribute any amount in excess of the amount by
which the total price at which the Offered Certificates underwritten
and distributed by it were offered to the public exceeds the amount
of any damages that the Underwriter has otherwise been required to
pay or become liable to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of
17
Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8 each person, if
any, who controls the Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Underwriter, and each
person, if any, who controls the Company within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 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. Any party
entitled to contribution will promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Termination. (a) This Agreement shall be subject to
termination in the absolute discretion of the Underwriter, by
notice given to the Company prior to delivery of and payment for
the Offered Certificates, if prior to such time (i) trading of
securities generally on the New York Stock Exchange or the
American Stock Exchange shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking
activities in the State of New York shall have been declared by
either Federal or New York State authorities or (iii) there shall
have occurred any material outbreak or declaration of hostilities
or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the
reasonable judgment of the Underwriter, impracticable to market
the Offered Certificates on the terms specified herein.
(b) If this Agreement is terminated in accordance
with Section 9(a), except if the event described in Section
9(a)(i) occurred directly or indirectly as a result of the action
of the Underwriter and such event is the basis upon which the
Underwriter seeks termination, the Company shall reimburse the
Underwriter for the reasonable fees and expenses of its counsel
and for such other out-of-pocket expenses as shall have been
incurred in connection with this Agreement and the proposed
purchase of the Offered Certificates, and upon demand, the
Company shall pay the full amount thereof to the Underwriter.
(c) This Agreement will survive delivery of and
payment for the Offered Certificates. The provisions of Sections
7, 8 and 12 shall survive the termination or cancellation of this
Agreement.
10. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Underwriter, will be mailed, delivered or telegraphed and
confirmed to the Underwriter at 2 World Financial Center -
Building B, New York, New York 10281-1198, Attention: Manager -
Mortgage Finance Department; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 2 World
Financial Center - Building B, New York, New York 10281-1198,
Attention: Manager - Mortgage Finance Department.
18
11. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8, and their successors and assigns, and
no other person will have any right or obligation hereunder.
12. Applicable Law; Counterparts. This Agreement will
be governed by and construed in accordance with the laws of the
State of New York. 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.
[Signatures Commence on Following Page]
19
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 between the Company and the Underwriter.
Very truly yours,
ASSET SECURITIZATION
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
20
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
NOMURA SECURITIES INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
21
SCHEDULE I
Underwriting Agreement dated March 20, 1997
Title, Purchase Price and Description of Offered Certificates:
Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1997-MD VII, Class A-1A, Class
A-1B, Class PS-1, Class CS-1, Class A-2, Class A-3, Class A-4,
Class A-5 and Class A-6 Certificates.
Original Certificate Balance of the Offered Certificates:
$487,078,946 (Approximate).
Cut-off Date: March 27, 1997.
Initial Pass-
Certificate Through S&P DCR Fitch Moody's
Desigation Balance1 Rate Rating Rating Rating Rating
---------- -------- ---- ------ ------ ------ ------
Class A-1A(4) 115,435,756 7.32000% AAA n/a AAA Aaa
Class A-1B(4) 214,279,224 7.41000% AAA n/a AAA Aaa
Class PS-1(4) 3 0.33126%(2) n/a n/a AAA Aaa
Class CS-1(4) 3 0.65561%(2) n/a n/a AAA Aaa
Class A-2 42,463,292 7.48561%(2) n/a n/a AA Aa
Class A-3 39,965,452 7.57561%(2) n/a A A A
Class A-4 37,467,611 7.77561%(2) n/a BBB n/a Baa
Class A-5 27,476,248 7.97561%(2) n/a BBB- BBB- n/a
Class A-6 9,991,363 7.97561%(2) n/a n/a BBB- n/a
-------------------------
1 Approximate, subject to adjustment as described herein.
2 The Pass-Through Rates are the rates for the Distribution Date
occurring in April 1997. The Pass-Through Rate for such class for
each subsequent Distribution Date will be calculated as provided
in the Prospectus Supplement.
3 The Class PS-1 and Class CS-1 Certificates will not have
Certificate Balances and will not be entitled to receive
distributions of principal. Interest will accrue on such classes
of Certificates at the Pass-Through Rates thereof (subject to
certain circumstances described in the Prospectus Supplement) on
the Notional Balances thereof. The Notional Balance of the Class
CS-1 Certificates is initially $115,435,756, which is equal to
the initial Certificate Balance of the Class A-1A Certificates.
The Notional Balance of the Class PS-1 Certificates is initially
$499,568,151.79, which is equal to the aggregate principal
balance of the Mortgage Loans as of the Cut-off Date.
4 The Class A-1A, Class A-1B, Class PS-1 and Class CS-1
Certificates will also be entitled to receive a portion of any
Prepayment Premiums received.
Closing Time, Date and Location: 10:00 a.m. New York City time,
March 27, 1997, at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx,
New York, New York.
Other Terms and Conditions: None.
S-2
