GREENWICH CAPITAL COMMERCIAL FUNDING CORP.,
Commercial Mortgage Pass-Through Certificates
Series _____
UNDERWRITING AGREEMENT
[Date]
[Address of Underwriter]
Ladies and Gentlemen:
Greenwich Capital Commercial Funding Corp., a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to sell to the underwriters named in Schedule I hereto (the
"Underwriters"; provided, however, that if you are the only underwriter named in
Schedule I hereto, then the terms "Underwriter" and "Underwriters" shall refer
solely to you), for which you are acting as representative (in such capacity,
the "Representative"), those classes (each, a "Class") of the Company's
Commercial Mortgage Pass-Through Certificates, Series _______, specified in
Schedule II hereto (the "Offered Certificates"). The Offered Certificates,
together with the other commercial mortgage pass-through certificates of the
same series (the "Private Certificates"; and, collectively with the Offered
Certificates, the "Certificates"), will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") to be dated as of
_________________ (the "Cut-off Date"), among the Company, as depositor,
______________________ as master servicer (the "Master Servicer"),
______________________ as special servicer (the "Special Servicer"), and
_________________________, 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 acquired certain of the Mortgage Loans
from ___________________________ (the "Mortgage Loan Seller"), pursuant to a
Mortgage Loan Purchase and Sale Agreement (the "Mortgage Loan Purchase and Sale
Agreement") dated as of the date hereof, between the Company and the Mortgage
Loan Seller. The Offered 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 the Underwriters.
Capitalized terms used but not otherwise defined herein will have the respective
meanings assigned thereto in the Prospectus Supplement.
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-_____________)
on Form S-3 for the registration under the Securities Act of 1933, as amended
(the "Act"), of the offer and sale of the Offered Certificates, which
registration statement has become effective and copies of which have heretofore
been delivered to the Representative. Such registration statement meets the
requirements set forth in Rule 415(a)(1) under the Act and complies in all other
material respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement, dated the date
specified in Schedule II hereto, to the prospectus, dated the date specified in
Schedule II hereto, relating to the Offered Certificates and the method of
distribution thereof and has previously advised you of all further information
(financial and other) with respect to the Offered Certificates set forth
therein. Such registration statement, including the exhibits thereto, as amended
at the date hereof is hereinafter called the "Registration Statement"; such
prospectus, in the form in which it will be filed with the Commission pursuant
to Rule 424 under the Act, is hereinafter called the "Basic Prospectus"; such
supplement to the Basic Prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424 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 and the form of
prospectus that accompanied it are hereinafter together called a "Preliminary
Prospectus". References herein to the Prospectus or Prospectus Supplement shall
exclude information incorporated therein by reference pursuant to a filing made
in accordance with Section 9 hereof, but shall include any ABS Term Sheet (as
defined in Section 9) actually included therein other than by incorporation by
reference (and regardless of whether such ABS Term Sheet is also incorporated
therein by reference). The Company, as depositor with respect to the Trust Fund,
will file with the Commission within 15 days of the issuance of the Offered
Certificates a report on Form 8-K setting forth specific information concerning
the Offered 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 (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
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or supplement thereto, in reliance upon and in conformity with written
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 and Sale Agreement, or (3)
any other information concerning the characteristics of the Mortgage Loans, the
related borrowers (the "Borrowers") or the related mortgaged properties (the
"Mortgaged Properties") furnished to the Company or the Underwriters by any
Mortgage Loan Seller, (C) the information regarding the Mortgage Loans, the
related Borrowers and the related Mortgaged Properties contained in or omitted
from the Prospectus Supplement, or any amendment thereof or supplement thereto,
under the headings "Summary of the Prospectus Supplement--The Mortgage Loans and
the Underlying Real Properties", "Risk Factors" and "Description of the Mortgage
Pool" or 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
(as defined in Section 9 hereof) or ABS Term Sheets, 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 9. 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 ________________, as supplemented to the Closing
Date, and rendered by ____________________.
(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 and the Pooling and Servicing Agreement, and is
conducting its business so as to comply in all material respects with all
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting business.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, regarding the Offered Certificates
(ii) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) At or prior to the Closing Date, the Company will have
entered into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and Servicing
Agreement, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company; and this Agreement constitutes, and the
Pooling and Servicing Agreement, 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
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generally, (ii) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of any provisions of this Agreement or
the Pooling and Servicing Agreement which purport or are construed to provide
indemnification from securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof contained
in the Prospectus; the issuance and sale of the Offered Certificates have been
duly and validly authorized by the Company, and such Certificates will, when
duly and validly executed and authenticated by the Trustee in accordance with
the Pooling and Servicing Agreement, be entitled to the benefits of the Pooling
and Servicing Agreement.
(g) Neither the sale of the Offered Certificates to the
Underwriters pursuant hereto, nor the consummation of any other of the
transactions contemplated herein, nor the fulfillment of any of the terms of the
Pooling and Servicing Agreement or this Agreement, will result in the breach of
any term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a material breach, violation or acceleration
of or constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which it is bound, or any statute, order or regulation applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects the ability of the
Company to perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(h) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing Agreement
or the Offered Certificates, (ii) seeking to prevent the issuance of the Offered
Certificates or the consummation of any of the transactions contemplated by this
Agreement or the Pooling and Servicing Agreement, (iii) which might materially
and adversely affect the performance by the Company of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling and Servicing
Agreement or the Offered Certificates or (iv) seeking to affect adversely the
federal income tax attributes of the Offered Certificates described in the
Prospectus.
(i) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of the Company
since the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Company to perform its obligations
under the Pooling and Servicing Agreement.
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(j) 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.
(k) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement, except such as have been, or as of the Closing
Date will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer and
sale of the Offered Certificates by the Underwriters and any recordation of the
respective assignments of the Mortgage Loan documents to the Trustee pursuant to
the Pooling and Servicing Agreement, that have not been completed.
(l) 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.
(m) Any taxes, fees and other governmental charges payable by
the Company in connection with the execution and delivery of this Agreement and
the Pooling and Servicing Agreement or the issuance and sale of the Offered
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.
(n) 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 on the basis of the assumption that the Mortgage Loan Sellers delivered to
the Company good title to each Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance.
(o) 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.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal or
notional amount of each Class of the Offered Certificates set forth opposite
each such Underwriter's name in Schedule I hereto..
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The purchase price for each Class of the Offered Certificates
as a percentage of the aggregate principal or notional amount thereof as of the
Closing Date is set forth in Schedule II hereto. There will be added to the
purchase price of the Offered Certificates interest in respect of each Class of
the Offered Certificates at the interest rate applicable to such Class from the
Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale
of the Offered Certificates contemplated hereby (the "Closing"), shall be made
at the date, location and time of delivery set forth in Schedule II hereto, or
such later date as shall be mutually acceptable to the Representative and the
Company (such date and time of purchase and sale of the Offered Certificates
being herein called the "Closing Date"). Delivery of the Offered Certificates
will be made in book- entry form through the facilities of The Depository Trust
Company ("DTC"). Each Class of Offered Certificates will be represented by one
or more definitive global Certificates to be deposited by or on behalf of the
Company with DTC. Delivery of the Offered Certificates shall be made to the
Underwriters against payment by the Underwriters of the purchase price thereof
to or upon the order of the Company by wire transfer of immediately available
funds or by such other method as may be acceptable to the Company.
The Company agrees to have the Offered Certificates available
for inspection, checking and packaging by the Underwriters in New York, New
York, not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that each
Underwriter proposes to offer its allocable share of the Offered 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 Offered Certificates. As
required by Policy Statement 105, each Underwriter therefore covenants and
agrees with the Company that sales of the Offered 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 each Underwriter that:
(a) The Company will promptly advise the Underwriters (i)
when, during any period that a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any amendment to the Registration
Statement affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration Statement
or the Prospectus, or for any additional information, affecting or in respect of
the Offered Certificates, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement affecting the
Offered Certificates or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will not file any amendment to the Registration
Statement affecting the Offered Certificates or any supplement to the Prospectus
unless the Company has furnished the Underwriters with a copy for their review
prior to filing, and will not file any such proposed amendment or supplement to
which the Representative may
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reasonably object, in any event until after the end of the period during which a
prospectus is required to be delivered to purchasers of the Offered Certificates
under the Act. 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 Offered 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 (each as defined in Section 9 below) with respect to the
Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the 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
Offered Certificates that is delivered by the Underwriters to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule 13a-11 under the Exchange Act on the business
day immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Company by the Underwriters prior to 10:30 a.m.
(New York City time). In addition, if at any time prior to the availability of
the Prospectus Supplement, the Underwriters have delivered to any prospective
investor a subsequent Collateral Term Sheet that reflects, in the reasonable
judgment of the Representative and the Company, a material change in the
characteristics of the Mortgage Loans from those on which a Collateral Term
Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet that
is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to 10:30
a.m. (New York City time). In each case, the Company will promptly advise the
Underwriters when such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing provisions of this Section 5(b), the
Company shall have no obligation to file any materials provided by any
Underwriter pursuant to Section 9 which, in the reasonable determination of the
Company, are not required to be filed pursuant to the Xxxxxx Letters or the PSA
Letter (each as defined in Section 9 below), or contain erroneous information or
contain any untrue statement of a material fact or, when read in conjunction
with the Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any Computational Materials or ABS Term Sheets provided by any Underwriter to
the Company pursuant to Section 9 hereof. The Company shall give notice to the
Underwriters of its determination not to file any materials pursuant to the
preceding sentence and agrees to file such materials if the Representative
reasonably object to such determination within one business day after receipt of
such notice.
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(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules under the Act, the
Company promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible; provided, however, that the Company will not be required to file any
such amendment or supplement with respect to any Computational Materials or ABS
Term Sheets incorporated by reference in the Prospectus other than any
amendments or supplements of such Computational Materials or ABS Term Sheets
that are furnished to the Company pursuant to Section 9 hereof which the Company
determines to file in accordance therewith.
(d) The Company will furnish to any Underwriter and counsel
for the Underwriters, without charge, for so long as delivery of a prospectus
relating to the Offered Certificates may be required by the Act, as many copies
of the Prospectus, the Preliminary Prospectus, if any, and any amendments and
supplements thereto as such Underwriter may reasonably request.
(e) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will deliver or cause to be delivered to
the Underwriters the annual statements as to compliance and the annual
statements of a firm of independent public accountants, furnished to the Trustee
by the Master Servicer and the Special Servicer pursuant to Sections 3.13 and
3.14 of the Pooling and Servicing Agreement, as soon as such statements are
furnished to the Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Representative may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(g) Whether or not the transactions contemplated in the
Pooling and Servicing Agreement are consummated or this Agreement is terminated,
the Company will pay or cause the payment of all expenses incident to the
performance of the obligations of the Company under this Agreement, including,
without limitation, (i) the fees, disbursements and expenses of the Company's
counsel in connection with the purchase of the Mortgage Loans and the issuance
and sale of the Offered Certificates, (ii) all fees and expenses incurred in
connection with the registration and delivery of the Offered Certificates under
the Act, and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, any Preliminary Prospectus, the Prospectus
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the
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quantities hereinabove specified, (iii) all costs and expenses related to the
transfer and delivery of the Offered Certificates to the Underwriters, including
any transfer or other taxes payable thereon, (iv) the costs of printing or
producing any "blue sky" memorandum in connection with the offer and sale of the
Offered Certificates under state securities laws and all expenses in connection
with the qualification of the Offered Certificates for the offer and sale under
state securities laws as provided in Section 5(f), including, without
limitation, filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the "blue sky" memorandum, (v) the cost of printing the Offered Certificates,
(vi) the costs and charges of any transfer agent, registrar or depository, (vii)
the fees and expenses of the Rating Agencies incurred in connection with the
issuance and sale of the Offered Certificates and (vii) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section.
The Company shall also be responsible for the payment of all
out-of-pocket costs and expenses incurred by the Underwriters, including,
without limitation, (i) the fees and disbursements of counsel for the
Underwriters and (ii) such additional costs arising out of any Computational
Materials and ABS Term Sheets prepared and/or distributed by the Underwriters,
in connection with the purchase and sale of the Offered Certificates; provided,
however, that if the Underwriters terminate this Agreement other than pursuant
to Section 7 or 10(b) hereof, the Underwriters shall be responsible for their
out-of-pocket costs and expenses.
(h) The Company shall deliver to each Underwriter a copy or
series of copies of the Prospectus (exclusive of information incorporated
therein and further exclusive of the exhibits and annexes to the Prospectus
Supplement) at or prior to the printing thereof, marked to show changes from the
Preliminary Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Agreement shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company contained herein
as of the date hereof and 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 Offered Certificates:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; and the Prospectus Supplement
shall have been filed with the Commission within the time period prescribed by
the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of the
Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date; and
(ii) the Company has in all material respects complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
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(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 ten days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or
an assistant secretary of the Company, in his individual capacity, a
certificate, dated the Closing Date, to the effect that: (i) each individual
who, as an officer or representative of the Company, signed this Agreement, the
Pooling and Servicing Agreement or any other document or certificate delivered
on or before the Closing Date in connection with the transactions contemplated
herein or in the Pooling and Servicing Agreement, was at the respective times of
such signing and delivery, and is as of the Closing Date, duly elected or
appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures; and (ii) no event (including, without limitation, any
act or omission on the part of the Company) has occurred since the date of the
good standing certificate referred to in paragraph (c) above which has affected
the good standing of the Company under the laws of the State of Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement and the Pooling and Servicing
Agreement.
(e) The Underwriters shall have received from Sidley & Austin,
counsel for the Company, a favorable opinion, dated the Closing Date and
reasonably satisfactory in form and substance to counsel for the Underwriters,
to the effect that:
(i) The Registration Statement has become effective under the
Act.
(ii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or threatened.
(iii) The Registration Statement, the Basic Prospectus and the
Prospectus Supplement, as of their respective effective or issue dates
(other than the financial statements, schedules and other financial and
statistical information contained therein or omitted therefrom, as to
which such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no material
contracts, indentures or other documents relating to the Offered
Certificates of a character required to be described or referred to in
the Registration Statement or the Prospectus Supplement or to be filed
as exhibits to the Registration Statement, other than those described
or referred to therein or filed or incorporated by reference as
exhibits thereto.
(v) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware
and has the requisite corporate power
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and authority to enter into and perform its obligations under this
Agreement and the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the
Company.
(vii) Each of the Pooling and Servicing Agreement and this
Agreement constitutes a valid, legal and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to (A) general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance and injunctive relief,
regardless of whether considered in a proceeding in equity or at law,
(B) the effect of certain laws, regulations and judicial and other
decisions upon the availability and enforceability of certain remedies
including the remedies of specific performance and self-help and
provisions purporting to waive the obligation of good faith,
materiality, fair dealing, diligence, reasonableness or objection to
venue or forum, to confer subject matter jurisdiction on a federal
court located within the State of New York to adjudicate any
controversy in any situation in which such court would not have subject
matter jurisdiction, to waive the right to jury trial, to impose a
penalty or forfeiture, to release, exculpate or exempt a party from, or
indemnify that party for, liability for its own action or inaction to
the extent that the action or inaction includes negligence,
recklessness or willful or unlawful conduct, to sever any provision of
any agreement, to restrict access to legal or equitable remedies, to
establish evidentiary standards, to appoint any person or entity as the
attorney-in-fact of any other person or entity, to require that any
agreement may only be amended, modified or waived in writing, to
provide that all rights or remedies of any party are cumulative and may
be enforced in addition to any other right or remedy, to provide that
the election of a 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
any such rights or remedies, to waive rights or remedies which can not
be waived as a matter of law, to provide for set-off unless there is
mutuality between the parties or to provide that any agreement is to be
governed by or construed in accordance with the laws of any
jurisdiction other than the State of New York, (C) bankruptcy,
insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other
similar laws affecting the rights of creditors or secured parties and
(D) public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of any provision of any agreement which purports or is construed to
provide indemnification with respect to securities law violations.
(viii) The Offered Certificates, when duly and validly
executed, authenticated and delivered in accordance with the Pooling
and Servicing Agreement and paid for in accordance with this Agreement,
will be entitled to the benefits of the Pooling and Servicing
Agreement.
(ix) Neither the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement nor the consummation of any of
the other transactions contemplated by, or the fulfillment by the
Company of the terms of, this Agreement and the Pooling and Servicing
Agreement, will conflict with or result in a breach or violation of any
term or provision of the certificate of incorporation or by-laws of the
Company or any federal or State of New York
-11-
statute or regulation, except such counsel need express no opinion as
to compliance with the securities laws of the State of New York and
other particular States in connection with the purchase and the offer
and sale of the Offered Certificates by the Underwriters.
(x) 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 Company of the transactions
contemplated by the terms of this Agreement and the Pooling and
Servicing Agreement, except such as may be required under the
securities laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the Offered
Certificates by the Underwriters as to which such counsel need express
no opinion, and except such as have been obtained.
(xi) 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.
(xii) The statements set forth in the Prospectus Supplement
under the headings "Description of the Offered Certificates" and
"Servicing of the 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 Offered Certificates and the Pooling
and Servicing Agreement, are accurate in all material respects.
(xiii) The statements set forth in the Prospectus Supplement
under the headings "Certain ERISA Considerations", "Federal Income Tax
Consequences" and "Legal Investment", and in the Basic Prospectus under
the headings "ERISA Considerations", "Federal Income Tax Consequences"
and "Legal Investment", to the extent that they purport to describe
certain matters of federal law or legal conclusions with respect
thereto, while not discussing all possible consequences of an
investment in the Offered Certificates to all investors, provide in all
material respects an accurate summary of such matters and conclusions
set forth under such headings.
(xiv) As described in the Prospectus Supplement, and assuming
compliance with all the provisions of the Pooling and Servicing
Agreement, (A) REMIC I will qualify as a REMIC within the meaning of
Sections 860A through 860G of the Internal Revenue Code of 1986 in
effect on the date hereof (the "REMIC Provisions") and the REMIC I
Regular Interests (as defined in the Pooling and Servicing Agreement)
will be "regular interests" and the Class R-I Certificates will
evidence the sole class of "residual interests" in REMIC I (as both
terms are defined in the REMIC Provisions in effect on the Closing
Date), (B) REMIC II will qualify as a REMIC within the meaning of the
REMIC Provisions, and the REMIC II Regular Interests (as defined in the
Pooling and Servicing Agreement) will be "regular interests" and the
Class R-II Certificates will evidence the sole class of "residual
interests" in REMIC II, and (C) REMIC III will qualify as a REMIC
within the meaning of the REMIC Provisions, and the Class S, Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, 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
C and
-12-
Class D Certificates will evidence "regular interests" and the Class
R-III Certificates will evidence the sole class of "residual interests"
in REMIC III.
(xv) The respective portions of the Trust Fund consisting of
Grantor Trust E and Grantor Trust R-I (each as defined in the Pooling
and Servicing Agreement) will each be classified as a grantor trust
under subpart E, part I of subchapter J of the Internal Revenue Code of
1986.
Such opinion (x) may express its reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement, (y) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto (other than the Company) and may otherwise be based on such assumptions
as may be reasonably acceptable to counsel for the Underwriters, and (z) may be
qualified as an opinion only on the law 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.
Based on such counsel's participation in conferences with
officers and other representatives of the Company and of the Master Servicer,
the Special Servicer, the Trustee, the Underwriters, the Mortgage Loan Seller,
and their respective counsel, at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel need not
pass upon or assume responsibility for the actual accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus (except as stated in paragraphs (xii) and (xiii) above) and need not
make an independent check or verification thereof, on the basis of the
foregoing, such counsel shall also confirm that nothing has come to the
attention of such counsel that would lead such counsel to believe that the
Registration Statement (other than (x) financial statements, schedules and other
numerical, financial and statistical data included therein or omitted therefrom
and (y) the documents incorporated therein, as to which such counsel need
express no opinion), 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 that the
Prospectus, as of the date of the Prospectus Supplement and at the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (other than (x)
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion).
(f) The Underwriters shall have received from counsel to each
Mortgage Loan Seller, a letter, dated the Closing Date, and reasonably
satisfactory in form and substance to counsel for the Underwriters, to the
effect that, based on such counsel's participation in conferences with officers
and other representatives of the Company, the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Mortgage Loan Seller, and their
respective counsel, at which the contents of the Prospectus Supplement were
discussed and, although such counsel need not pass upon or assume responsibility
for the actual accuracy, completeness or fairness of the statements contained in
the Prospectus Supplement and need not make an independent check or verification
-13-
thereof, nothing has come to the attention of such counsel that would lead such
counsel to believe that the Prospectus Supplement, as of the date of the
Prospectus Supplement and at the Closing Date, insofar as it relates to the
characteristics of the Mortgage Loans sold by the Mortgage Loan Seller to the
Company, the related Mortgaged Properties and/or the related Borrowers,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (other than
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and the documents incorporated
therein, as to which such counsel need express no opinion).
(g) The Underwriters shall have received from their counsel an
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to the Representative.
(h) The Underwriters shall have received, with respect to each
of the Master Servicer, the Special Servicer and the Trustee, a favorable
opinion of counsel, dated the Closing Date and satisfactory to counsel for the
Underwriters, addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in Section 6(e)(vii), the enforceability of the Pooling
and Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of parties to, this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered and be based upon such other
assumptions 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 laws of the United States of America.
(i) The Underwriters shall have received from
______________________, 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 Representative 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
Representative may reasonably request and as are agreed to by
______________________, 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.
(j) The Underwriters shall have received all opinions,
certificates and other documents required under the Mortgage Loan Sale and
Purchase Agreements to be delivered by the Mortgage Loan Seller and its counsel
in connection with the sale of the Mortgage Loans to the Company, and such
opinion shall be dated the Closing Date and addressed to the Underwriters.
-14-
(k) The Underwriters shall have received all opinions rendered
to the rating agency or agencies identified on Schedule II hereto, by counsel to
the Company and the Mortgage Loan Seller, and each such opinion shall be dated
the Closing Date and addressed to the Underwriters.
(l) The Offered Certificates listed on Schedule II hereto
shall have been rated as indicated on such Schedule by the rating agency or
agencies identified on such Schedule and such ratings shall not have been
rescinded.
(m) 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 Representative and
counsel for the Underwriters.
(n) 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 Representative after consultation with the Company, materially impairs the
investment quality of the Offered Certificates so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the Offered
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
Representative 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 Representative. Notice of such cancellation
shall be given to the Company in writing, or by telephone or by either telegraph
or telecopier confirmed in writing.
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
-15-
Supplement (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with written 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 the Mortgage
Loan Seller set forth in or made pursuant to the Mortgage Loan Purchase and Sale
Agreement or (3) any other information concerning the characteristics of the
Mortgage Loans, the Mortgaged Properties or the Borrowers furnished to the
Company by the Mortgage Loan Seller, or (C) 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) with respect to the Mortgage Loans,
the Mortgaged Properties, the Borrowers and/or the Mortgage Loan Seller under
the headings "Summary of the Prospectus Supplement--The Mortgage Loans and the
Underlying Real Properties", "Risk Factors" and "Description of the Mortgage
Pool" therein or 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 9 (it being understood and agreed that if any
ABS Term Sheet is both incorporated by reference into the Prospectus or any
Preliminary Prospectus and also actually included therein, this clause (D) is
intended solely to exclude the version of such ABS Term Sheet that is
incorporated by reference therein); 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 an Underwriter) from whom the person
asserting any such loss, claim, damage, liability, cost or expense purchased the
Offered Certificates which are the subject thereof if (w) 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, (x) the Company has previously furnished to such Underwriter copies
thereof in sufficient quantity, (y) the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as most recently amended or supplemented) and (z)
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.
(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
-16-
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, which were also
furnished to the Company by such 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 9, 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),
including, without limitation, any ABS Term Sheet actually included therein,
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 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 the
Mortgage Loan Seller set forth in or made pursuant to the Mortgage Loan Purchase
and Sale 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 the 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 the 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 the person that purchased the
Offered 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 ________ sentence of the ________ paragraph
of the cover page, and the ________ sentence of the ________ paragraph, the
________ sentence of the ________ paragraph and the ________ sentence of the
________ 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 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 9, any such ABS Term Sheet to be treated
-17-
separately from any version thereof actually included in the Prospectus as
described in Section 1(a) hereof), and the Underwriters 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 any
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 (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party); provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the 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 Representative 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 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). 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.
-18-
(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 purchase price of the Offered
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 Offered Certificates) be
responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Offered Certificates purchased
by such Underwriter hereunder; and
(ii) in the case of any losses, claims, damages, 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
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 an Underwriter
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 pro rata 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.
-19-
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, the Underwriters shall
deliver to the Company and its counsel, as provided below, a complete copy of
all materials provided by the Underwriters to prospective investors in the
Offered Certificates which constitute either (i) "Computational Materials"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx Structured Asset
Corporation and the no-action letter dated May 27, 1994 issued by the Division
of Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Xxxxxx Letters, the "No- Action Letters"),
if the filing of such materials with the Commission is a condition of the relief
granted in such letters and, in the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, such Collateral
Term Sheets have not previously been delivered to the Company as contemplated by
Section 9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company and its counsel
pursuant to this paragraph (a) shall be made in paper form and, in the case of
ABS Term Sheets, electronic format suitable for filing with the Commission.
(b) Each Underwriter represents and warrants to and agrees
with the Company, as of the date hereof and as of the Closing Date, as
applicable, that:
(i) if such Underwriter has provided any Collateral Term
Sheets to potential investors in the Offered Certificates prior to the
date hereof and if the filing of such materials with the Commission is
a condition of the relief granted in the PSA Letter, then in each such
case such Underwriter delivered to the Company and its counsel, in the
manner contemplated by Section 9(a), a copy of such materials no later
than 10:30 a.m., New York City time, on the first business day
following the date on which such materials were initially provided to a
potential investor;
-20-
(ii) the Computational Materials (either in original,
aggregated or consolidated form) and ABS Term Sheets furnished to the
Company pursuant to Section 9(a) or as contemplated in Section 9(b)(i)
constitute all of the materials relating to the Offered Certificates
furnished by such Underwriter (whether in written, electronic or other
format) to prospective investors in the Offered Certificates prior to
the date hereof, except for any Preliminary Prospectus and any
Computational Materials and ABS Term Sheets with respect to the Offered
Certificates which are not required to be filed with the Commission in
accordance with the No-Action Letters, and all Computational Materials
and ABS Term Sheets provided by such Underwriter to potential investors
in the Offered Certificates comply with the requirements of the
No-Action Letters;
(iii) on the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Offered Certificates
referred to in Section 9(b)(ii) were last furnished by such Underwriter
to each prospective investor, on the date of delivery thereof to the
Company pursuant to or as contemplated by this Section 9 and on the
Closing Date, such Computational Materials and/or ABS Term Sheets did
not and will not include any untrue statement of a material fact or,
when read in conjunction with the Prospectus, omit to state a material
fact 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 Offered Certificates were furnished 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 such Underwriter contained in
subparagraphs (ii) and (iii) above of this Section 9(b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term
Sheet, that such information supersedes the information in all prior
Collateral Term Sheets;
(vi) all Computational Materials and ABS Term Sheets with
respect to the Offered Certificates furnished by such Underwriter 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
-21-
(vii) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS
Term Sheets or other materials relating to the Offered Certificates
(whether in written, electronic or other format) to any potential
investor unless such potential investor has received a Prospectus prior
to or at the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials;
provided that no Underwriter makes any representation or warranty as to whether
any Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement 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 the
related Mortgage Loan Seller or the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Representative 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 any
Underwriter 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, the Underwriters, at their expense (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 Offered 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 the Underwriters to the Company pursuant to this paragraph (c)) or
(ii) such filing is not required under the Act. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact 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 Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriter from the related
Mortgage Loan Seller or the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
-22-
(d) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Company or its counsel to amend or supplement the Prospectus
as a result of an untrue statement of a material fact contained in any
Computational Materials or ABS Term Sheets provided by 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, at their expense (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 Offered
Certificates that received such information being amended or supplemented. Each
Underwriter represents and warrants to the Company, as of the date of delivery
of such amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact 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
Offered Certificates included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriter from the
related Mortgage Loan Seller or the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(e) The Underwriters further agree to provide to the Company,
at their own expense, any accountants' letters obtained relating to the
Computational Materials and/or ABS Term Sheets, which accountants' letters shall
be addressed to the Company or shall state that the Company may rely thereon;
provided that the Underwriters shall have no obligation to procure any such
letter.
10. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the
amount of the Offered Certificates agreed by such Underwriter to be purchased
under this Agreement, upon tender of such Offered Certificates in accordance
with the terms hereof, and the amount of the Offered Certificates not purchased
does not aggregate more than 10% of the total amount of the Offered Certificates
set forth in Schedule I hereof (based on aggregate purchase price), the
remaining Underwriters shall be obligated to take up and pay for the Offered
Certificates that the withdrawing or defaulting Underwriter agreed but failed to
purchase.
-23-
(b) If any Underwriter shall fail to take up and pay for the
amount of the Offered Certificates agreed by such Underwriter to be purchased
under this Agreement (such Underwriter being a "Defaulting Underwriter"), upon
tender of such Offered Certificates in accordance with the terms hereof, and the
amount of the Offered Certificates not purchased aggregates more than 10% of the
total amount of the Offered Certificates set forth in Schedule I hereto (based
on aggregate price), and arrangements satisfactory to the remaining
Underwriter(s) and the Company for the purchase of such Certificates by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination, the Company shall not be under any
liability to any Underwriter (except to the extent provided in Section 5(g) and
Section 8 hereof) nor shall any Underwriter (other than an Underwriter who shall
have failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of the Offered Certificates such Underwriter agreed to
purchase hereunder) be under any liability to the Company (except to the extent
provided in Sections 8 and 9 hereof). Nothing herein shall be deemed to relieve
any Defaulting Underwriter from any liability it may have to the Company or to
the other Underwriter(s) by reason of its failure to take up and pay for Offered
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
Representative by notice given to the Company prior to delivery of and payment
for all Offered Certificates if prior to such time (i) trading in securities of
the Company or any affiliate on the New York Stock Exchange shall have been
suspended or limited, or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared by either federal
or New York State authorities, or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Representative, impractical to market the Offered
Certificates.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Offered Certificates. The
provisions of Sections 5(g), 7, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to 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, at such other address as may
be furnished by such Underwriter to the Company in accordance with this Section
13); or, if sent to the Company, will be mailed, delivered or either telegraphed
or transmitted by telecopier and confirmed to it at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx, Attention: Xxxx Xxxxxxxxx D., Esq. (or at such other
address as may be furnished by the Company to each Underwriter in accordance
with this Section 13); [or, if sent to the Additional Party, will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to it
at _____________________________________, Attention: _____________________ (or
at such other address as may be furnished by the Additional Party to each
Underwriter in accordance with this Section 13)].
-24-
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors, heirs and legal representatives, and no other person will have
any right or obligation hereunder.
15. Miscellaneous. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York
applicable to agreements made and to be performed entirely in said State. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought.
[16. Obligations of the Additional Party. The Additional Party
agrees, in consideration of and as an inducement to the Underwriters' purchase
of the Offered Certificates from the Company, to indemnify and hold harmless
each Underwriter, and each person who controls each Underwriter within the
meaning of the Act or the Exchange Act, against any failure by the Company to
perform any of its obligations under Section 8 hereof (as they relate to the
indemnity agreement of the Company in Section 8(a) and the corresponding
contribution obligations in Section 8(d) (the "Covered Obligations")), promptly
after receipt from any Underwriter of written notice of any such failure. The
Additional Party hereby waives notice of acceptance of its obligations hereunder
and notice of any obligation or liability to which it may apply, and waives
presentment, demand for payment, protest, notice of dishonor or non-payment of
any such obligation or liability, suit or the taking of other action by any
party hereto against, and any other notice to, the Additional Party. The
Additional Party's obligations hereunder shall not be affected by any events,
occurrences or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor or surety, and such obligations
will only be discharged by full, complete and final payment of the Covered
Obligations.]
[SIGNATURE PAGE FOLLOWS]
-25-
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, the Additional Party and the Underwriters.
Very truly yours,
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
By:
---------------------------------------
Name:
Title:
[ADDITIONAL PARTY]*
By:
---------------------------------------
Name:
Title:
Accepted at New York, New York,
as of the date first written
above, on behalf of each of the
underwriters identified on
Schedule I hereto.
[UNDERWRITER]
By:
-------------------------------
Name:
Title:
[* ________________________. is executing this Underwriting Agreement
solely with respect to its obligations set forth in Section 16 and with
respect to the matters set forth in Section 12, Section 13, Section 14
and Section 15.]
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
---------------------------- ----- ----------------------------
Class S $______________(1)
Class A-1 $______________
Class A-2 $______________
Class A-3 $______________
Class A-4 $______________
Class A-5 $______________
Class B-1 $______________
Class B-2 $______________
-----
------------
(1) Notional Amount
SCHEDULE II
Registration Statement No. 333-
--------
Basic Prospectus dated
Prospectus Supplement dated
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series ________, Class S,
Class X-0, Xxxxx X-0, Class A-3,
Class A-4, Class A-5, Class B-1 and
Class B-2
Cut-off Date: _____________________
Closing: _________ a.m. on ___________________
at the offices of
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Schedule II (continued)
Initial
Aggregate Certificate
Principal Balance
or Notional Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
----------------- ------------------ ----------------- ----------------- ----------
Class S $______________(4) ________% ________%
Class A-1 $______________ ________% ________%
Class A-2 $______________ ________% ________%
Class A-3 $______________ ________% ________%
Class A-4 $______________ ________% ________%
Class A-5 $______________ ________% ________%
Class B-1 $______________ ________% ________%
Class B-2 $______________ ________% ________%
------------------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Certificates to be purchased.
The purchase price for each class of the Offered Certificates will include
accrued interest at the initial Pass-Through Rate therefor on the aggregate
stated or notional amount, as applicable, thereof to be purchased from the
Cut-off Date to but not including the Closing Date.
(3) By .
-----------------------------------
(4) Aggregate Notional Amount.
