EXECUTION COPY
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG1
UNDERWRITING AGREEMENT
March 15, 1999
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to sell to the
underwriters named in Schedule I hereto (the "Underwriters"; provided, however,
that if you are the only underwriter named in Schedule I, then the terms
"Underwriter" and "Underwriters" shall refer solely to you), for whom Xxxxxxxxx.
Xxxxxx & Xxxxxxxx Securities Corporation acts as representative (in such
capacity, the "Representative") those classes (each, a "Class") of its
Commercial Mortgage Pass-Through Certificates, Series 1999-CG1, specified in
Schedule II hereto (the "Offered Certificates"). The Offered Certificates will
be issued pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") to be dated as of March 1, 1999 (the "Cut-off Date"),
among the Company, as depositor, GE Capital Loan Services, Inc., as master
servicer (the "Master Servicer"), Banc One Mortgage Capital Markets, LLC, as
special servicer (the "Special Servicer"), and Norwest Bank Minnesota, National
Association, as trustee (in such capacity, the "Trustee") and as REMIC
administrator (in such capacity, the "REMIC Administrator"). The Offered
Certificates will evidence undivided interests in a trust fund (the "Trust
Fund") to be established by the Company pursuant to the Pooling and Servicing
Agreement. The Trust Fund will consist primarily of a pool (the "Mortgage Pool")
of conventional, monthly pay, commercial and multifamily mortgage loans (the
"Mortgage Loans") transferred by the Company to the Trust Fund and listed in an
attachment to the Pooling and Servicing Agreement. Three real estate mortgage
investment conduit ("REMIC") elections are to be made with respect to the Trust
Fund with the resulting REMICs being referred to as "REMIC I", "REMIC II" and
"REMIC III", respectively. The Class B-3, Class B-4, Class B-5, Class B-6, Class
B-7, Class B-8, Class C, Class D-1, Class D-2, Class R-I, Class R-II and Class
R-III Certificates (collectively with the Offered Certificates, the
"Certificates") are also to be issued pursuant to the Pooling and Servicing
Agreement but do not form a part of this offering. The Offered Certificates are
described more fully in the Basic Prospectus and the Prospectus Supplement
(each of which terms is defined below) which the Company is furnishing to you.
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. 333-59167) on Form S-3 for the
registration under the Securities Act of 1933, as amended (the "Act"), of the
Offered Certificates, which registration statement has become effective and
copies of which have heretofore been delivered to you. Such registration
statement meets the requirements set forth in Rule 415(a)(1) under the Act and
complies in all other material respects with such Rule. The Company proposes to
file with the Commission pursuant to Rule 424 under the Act a supplement, dated
the date specified in Schedule II hereto, to the prospectus, dated the date
specified in Schedule II hereto, relating to the Offered Certificates and the
method of distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Offered Certificates set
forth therein. Such registration statement, including the exhibits thereto, as
amended at the date hereof is hereinafter called the "Registration Statement";
such prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter called the "Basic
Prospectus"; such supplement to the Basic Prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424 of the Act, is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the
Prospectus Supplement together are hereinafter called the "Prospectus". Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 402(a) or Rule 424 is hereinafter called a "Preliminary
Prospectus Supplement". The Company will not, without your prior consent, file
any other amendment to the Registration Statement or make any change in the
Basic Prospectus or the Prospectus Supplement until after the end of the period
during which a prospectus is required to be delivered to purchasers of the
Offered Certificates under the Act. The Company, as depositor with respect to
the Trust Fund, will file with the Commission within fifteen days of the
issuance of the Offered Certificates a report on Form 8-K setting forth specific
information concerning the Offered Certificates (the "Form 8-K").
(b) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to Rule 424
under the Act, when, prior to the Closing Date, any other amendment to the
Registration Statement becomes effective, when any supplement to the Prospectus
Supplement is filed with the Commission, and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complied or will comply in all
material respects with the applicable requirements of the Act and the rules
thereunder, (ii) the Registration Statement, as amended as of any such time, did
not and will not contain any untrue statement of a material fact and did not and
will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the
Prospectus, as amended or supplemented as of any such time, did not and will not
contain an untrue statement of a material fact and did not and will not
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omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to
(A) the information contained in or omitted from the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with written information furnished to the Company by you, or
by any Underwriter through you, specifically for use in the preparation thereof,
or (B) the information contained in or omitted from any Current Report (as
defined in Section 5(b) hereof), or any amendment thereof or supplement thereto,
incorporated by reference in the Registration Statement or the Prospectus (or
any amendment thereof or supplement thereto).
(c) The Company is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full power and
authority (corporate and other) to own its properties and conduct its business,
as described in the Prospectus, and to enter into and perform its obligations
under this Agreement and the Pooling and Servicing Agreement, and is conducting
its business so as to comply in all material respects with all applicable
statutes, ordinances, rules and regulations of the jurisdictions in which it is
conducting business.
(d) The Company is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(e) At or prior to the Closing Date, the Company will have entered into the
Pooling and Servicing Agreement; this Agreement has been duly authorized,
executed and delivered by the Company, and the Pooling and Servicing Agreement,
when delivered by the Company, will have been duly authorized, executed and
delivered by the Company, and this Agreement and the Pooling and Servicing
Agreement will constitute valid and binding agreements of the Company,
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency, liquidation,
moratorium, receivership, reorganization or similar laws affecting the rights of
creditors generally, (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of any provisions of this
Agreement which purport to provide indemnification from securities law
liabilities.
(f) The Offered Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in the
Prospectus; the Offered Certificates have been duly and validly authorized by
the Company, and will, when duly and validly executed and authenticated by the
Trustee and delivered to and paid for by the Underwriters in accordance with
this Agreement and the Pooling and Servicing Agreement, be entitled to the
benefits of the Pooling and Servicing Agreement.
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(g) As of the Closing Date, the representations and warranties of the
Company set forth in Section 2.04 of the Pooling and Servicing Agreement will be
true and correct.
(h) Neither the issuance and sale of the Offered Certificates, nor the
consummation of any other of the transactions contemplated herein, nor the
fulfillment of any of the terms of the Pooling and Servicing Agreement or this
Agreement, will result in the breach of any term or provision of the certificate
of incorporation or by-laws of the Company or conflict with, result in a
material breach, violation or acceleration of or constitute a default under, the
terms of any indenture or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it is bound, or any statute,
order or regulation applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company or any of its subsidiaries. Neither the Company
nor any of its subsidiaries is a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects the ability of the Company to perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(i) There are no actions or proceedings against, or investigations of, the
Company pending, or, to the knowledge of the Company, threatened, before any
court, administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement or the Offered Certificates,
(ii) seeking to prevent the issuance of the Offered Certificates or the
consummation of any of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement or the
Offered Certificates or (iv) seeking to affect adversely the federal income tax
attributes of the Offered Certificates described in the Prospectus.
(j) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Company since the
date of its latest audited financial statements which would have a material
adverse effect on the ability of the Company to perform its obligations under
the Pooling and Servicing Agreement.
(k) There are no contracts, indentures or other documents of a character
required by the Act or by the rules and regulations thereunder to be described
or referred to in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement which have not been so described or
referred to therein or so filed or incorporated by reference as exhibits
thereto.
(l) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance or
sale of the Offered Certificates pursuant to this Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Offered
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Certificates by the Underwriters and any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that have not been completed.
(m) The Company possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company.
(n) Any taxes, fees and other governmental charges payable by the Company
in connection with the execution and delivery of this Agreement and the Pooling
and Servicing Agreement or the issuance and sale of the Certificates (other than
such federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the Closing Date.
(o) Immediately prior to the assignment of the Mortgage Loans to the
Trustee, the Company will have good title to, and will be the sole owner of,
each Mortgage Loan, free and clear of any pledge, mortgage, lien, security
interest or other encumbrance.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal or notional amount of each
class of the Offered Certificates set forth opposite each such Underwriter's
name in Schedule I hereto.
The purchase price for each Class of the Offered Certificates as a
percentage of the aggregate principal (or notional) amount thereof as of the
Closing Date (as defined below) is set forth in Schedule II hereto. There will
be added to the purchase price of the Offered Certificates interest in respect
of each Class of the Offered Certificates at the interest rate applicable to
such Class from the Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale of the
Offered Certificates contemplated hereby (the "Closing"), shall be made at the
date, location and time of delivery set forth in Schedule II hereto, or such
later date as shall be mutually acceptable to the Underwriters and the Company
(such date and time of purchase and sale of the Offered Certificates being
herein called the "Closing Date"). Delivery of the Offered Certificates will be
made in book-entry form through the facilities of The Depository Trust Company
("DTC"). Each class of Offered Certificates will be represented by one or more
definitive global Certificates to be deposited by or onbehalf of the Company
with DTC. Delivery of the Offered Certificates shall be made to the several
Underwriters against payment by the several Underwriters of the purchase price
thereof to
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or upon the order of the Company by wire transfer of immediately available funds
or by such other method as may be acceptable to the Company.
The Company agrees to have the Offered Certificates available for
inspection, checking and packaging by the Underwriters in New York, New York,
not later than 1:00 p.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Certificates for sale to the public as set forth in
the Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will promptly advise the Underwriters (i) when, during any
period that a prospectus relating to the Offered Certificates is required to be
delivered under the Act, any amendment to the Registration Statement shall have
become effective, (ii) of any request by the Commission for any amendment to the
Registration Statement or the Prospectus or for any additional information
affecting or in respect of the Offered Certificates, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement affecting the Offered Certificates or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will not file any
amendment to the Registration Statement or supplement to the Prospectus unless
the Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you reasonably
object until after the period in which a prospectus is required to be delivered
to purchasers of the Offered Certificates under the Act. Subject to the
foregoing sentence, the Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said Rule. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) The Company will cause any Computational Materials and Structural Term
Sheets (each as defined in Section 9 below) with respect to the Offered
Certificates that are delivered by an Underwriter to the Company pursuant to
Section 9 to be filed with the Commission on a Current Report on Form 8-K (a
"Current Report") pursuant to Rule 13a-11 under the Exchange Act on the business
day immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company by
an Underwriter prior to 10:30 a.m. (New York City time) and (ii) the date on
which this Agreement is executed and delivered. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to the
Offered Certificates that is delivered by the Underwriters to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Reportpursuant 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
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prior to 10:30 a.m. (New York City time). In addition, if at any time prior to
the availability of the Prospectus Supplement, the Underwriters have delivered
to any prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of the Underwriters and the Company, a material change
in the characteristics of the Mortgage Loans from those on which a Collateral
Term Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet that
is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to 10:30
a.m. (New York City time). In each case, the Company will promptly advise the
Representative when such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing provisions of this Section 5(b), the
Company shall have no obligation to file any materials provided by the
Underwriters pursuant to Section 9 which, in the reasonable determination of the
Company, are not required to be filed pursuant to the Xxxxxx Letters or the PSA
Letter (each as defined in Section 9 below), or contain erroneous information or
contain any untrue statement of a material fact or, when read in conjunction
with the Prospectus and Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any Computational Materials or ABS Term Sheets (as defined in Section 9 below)
provided by the Underwriters to the Company pursuant to Section 9 hereof. The
Company shall give notice to the Representative of its determination not to file
any materials pursuant to the preceding sentence and agrees to file such
materials if the Underwriters reasonably object to such determination within one
business day after receipt of such notice.
(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.
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(d) The Company will furnish to the Representative and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery by an
Underwriter or dealer of a prospectus relating to the Offered Certificates may
be required by the Act, as many copies of the Basic Prospectus, the Preliminary
Prospectus Supplement, if any, and the Prospectus Supplement and any amendments
and supplements thereto as the Underwriters may reasonably request.
(e) The Company agrees that, so long as the Offered Certificates shall be
outstanding, it will deliver or cause to be delivered to the Underwriters the
annual statements as to compliance and the annual statements of a firm of
independent public accountants, furnished to the Trustee by the Master Servicer
and the Special Servicer pursuant to Sections 3.13 and 3.14 of the Pooling and
Servicing Agreement, as soon as such statements are furnished to the Company.
(f) The Company will furnish such information, execute such instruments and
take such action, if any, as may be required to qualify the Offered Certificates
for sale under the laws of such jurisdictions as the 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) The Company will pay all costs and expenses in connection with the
transactions contemplated hereby, including, but not limited to, the fees and
disbursements of its counsel; the costs and expenses of printing (or otherwise
reproducing) and delivering the Pooling and Servicing Agreement and the Offered
Certificates; accounting fees and disbursements; the costs and expenses in
connection with the qualification or exemption of the Offered Certificates under
state securities or blue sky laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith, in connection with the
preparation of any Blue Sky Survey and in connection with any determination of
the eligibility of the Offered Certificates for investment by institutional
investors and the preparation of any Legal Investment Survey; the expenses of
printing any such Blue Sky Survey and Legal Investment Survey; the costs and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto), the Basic Prospectus, the
Preliminary Prospectus Supplement, if any, and the Prospectus Supplement, the
preparation and printing of this Agreement, the furnishing to the Underwriters
of such copies of each Preliminary Prospectus Supplement, if any, and Prospectus
Supplement as the Underwriters may reasonably request and the fees of rating
agencies. Except as provided in Section 7 hereof, the Underwriters shall be
responsible for paying all costs and expenses incurred by them in connection
with their purchase and sale of the Offered Certificates, including the fees of
counsel to any Underwriter.
6. Conditions to the Obligations to the Underwriters. The obligations of
the Underwriters to purchase the Offered Certificates as provided in this
Agreement shall be subject to
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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 pursuant to the provisions hereof, to the
performance in all material respects by the Company of its obligations hereunder
and to the following additional conditions with respect to the Offered
Certificates:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened; and the Prospectus Supplement shall have been
filed with the Commission within the time period prescribed by the Commission.
(b) The Underwriters shall have received from the Company a certificate,
dated the Closing Date and executed by an executive officer of the Company, to
the effect that: (i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects at and as of the Closing
Date with the same effect as if made on the Closing Date; and (ii) the Company
has in all material respects complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to the
Closing Date.
(c) The Underwriters shall have received with respect to the Company a good
standing certificate from the Secretary of State of the State of Delaware, dated
not earlier than 30 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an assistant
secretary of the Company, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (i) each individual who, as an officer or
representative of the Company, signed this Agreement, the Pooling and Servicing
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Pooling and Servicing Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents and certificates are their genuine signatures; and
(ii) no event (including, without limitation, any act or omission on the part of
the Company) has occurred since the date of the good standing certificate
referred to in paragraph (c) above which has affected the good standing of the
Company under the laws of the State of Delaware. Such certificate shall be
accompanied by true and complete copies (certified as such by the Secretary or
an assistant secretary of the Company) of the certificate of 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 Representative, to the
effect that:
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(i) The Registration Statement has become effective under the 1933 Act.
(ii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and not withdrawn,
and no proceedings for that purpose have been instituted or threatened and not
terminated.
(iii) The Registration Statement, the Basic Prospectus and the Prospectus
Supplement, as of their respective effective or issue dates (other than the
financial statements, schedules and other financial and statistical information
contained therein or omitted therefrom, as to which such counsel need express no
opinion), complied as to form in all material respects with the applicable
requirements of the Act and the rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no material contracts,
indentures or other documents relating to the Offered Certificates of a
character required to be described or referred to in the Registration Statement
or the Prospectus Supplement or to be filed as exhibits to the Registration
Statement, other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and validly existing as a corporation
in good standing under the laws of the State of Delaware and has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Company.
(vii) Each of this Agreement and the Pooling and Servicing Agreement
constitutes a valid, legal and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by (A) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors generally, (B) general principles of equity, regardless of whether
enforcement is sought in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws to the extent that the same limit
the enforceability of any provisions of this Agreement that purport or are
construed to provide indemnification with respect to securities law violations.
(viii) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement, will be entitled to
the benefits of the Pooling and Servicing Agreement.
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(ix) Neither the sale of the Offered Certificates to the Underwriters
pursuant to this Agreement nor the consummation of any of the transactions
contemplated by or the fulfillment by the Company of the terms of this Agreement
and the Pooling and Servicing Agreement, will conflict with or result in a
breach or violation of any term or provision of the certificate of incorporation
or by-laws of the Company, or any federal or State of New York statute or
regulation, or any order known to such counsel of any federal or State of New
York court or agency or other governmental body having jurisdiction over the
Company, except such counsel need express no opinion as to compliance with the
securities laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the Offered Certificates
by the Underwriters.
(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 Pooling Agreements", insofar as such
statements purport to summarize certain material provisions of the Certificates
and the Pooling and Servicing Agreement, provide a fair and accurate summary of
such provisions.
(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 a fair
and 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 real estate mortgage investment conduit (a "REMIC") within the
meaning of Sections 860A through 860G of the Internal Revenue Code of 1986 in
effect on the date hereof (the
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"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-1A, Class A-1B, Class A-2, Class A-3, Class A-4, Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8 and
Class C Certificates will evidence "regular interests" and the Class R-III
Certificates will evidence the sole class of "residual interests" in REMIC III.
(xv) Assuming compliance with all the provisions of the Pooling and
Servicing Agreement, for City and State of New York income and corporation
franchise tax purposes: (A) REMIC I, REMIC II and REMIC III will each be
classified as a REMIC, and not as a corporation, partnership or trust, in
conformity with the federal income tax treatment of REMIC I, REMIC II and REMIC
III, respectively; and (B) the Trust Fund will be exempt from all City and State
of New York taxation imposed on its income, franchise or capital stock, and its
assets will not be included in the calculation of any City or State of New York
franchise tax liability.
(xvi) The portions of the Trust Fund consisting of Grantor Trust D-1 and
Grantor Trust D-2 (each as defined in the Prospectus Supplement) 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
(z) may be qualified as an opinion only on the law of the State of New York, the
federal law of the United States of America and the General Corporation Law of
the State of Delaware.
Based on such counsel's participation in conferences with officers and
other representatives of the Company and of the Master Servicer and Special
Servicer, the Trustee, the REMIC Administrator, the Underwriters and their
respective counsel, at which the contents of the Registration Statement and the
Prospectus were discussed and, although such counsel need not pass upon or
assume responsibility for the actual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii) and (xiii) above) and need not make an independent
check or verification thereof for the purpose of rendering this opinion, on the
basis of the foregoing, such counsel shall also confirm that nothing has come to
the attention of such counsel that would lead such counsel to believe that the
Prospectus,
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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, (y) the documents incorporated
therein, and (z) the information included therein or omitted therefrom relating
to the characteristics of the Mortgage Loans acquired by the Company from GE
Capital Access, Inc. ("GECA"; and such Mortgage Loans, the "GECA Mortgage
Loans"), as to which such counsel need express no opinion). Insofar as questions
of materiality are involved in the foregoing opinion, such counsel may as to
factual matters necessary to the determination of materiality rely upon
certificates and other information provided by officers and other
representatives to the Company and as to determinations of materiality, may seek
in the first instance and rely where such counsel concludes such reliance is
justifiable, on the view of officers and other representatives of the Company.
(f) The Underwriters shall have received from GECA's counsel, one or more
letters, 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
REMIC Administrator, the Underwriters 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 thereof for
the purpose of rendering this opinion, nothing has come to the attention of such
counsel that would lead such counsel to believe that the Prospectus Supplement,
as of the date of the Prospectus Supplement and at the Closing Date, insofar as
it relates to the characteristics of the GECA Mortgage Loans, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than financial
statements, schedules and other numerical, financial and statistical data
included therein or omitted therefrom and the documents incorporated therein, as
to which such counsel need express no opinion). Insofar as questions of
materiality are involved in the foregoing opinion, such counsel may as to
factual matters necessary to the determination of materiality rely upon
certificates and other information provided by officers and other
representatives to GECA and as to determinations of materiality, may seek in the
first instance and rely where such counsel concludes such reliance is
justifiable, on the view of officers and other representatives of GECA.
(g) The Underwriters shall have received, with respect to each of the
Master Servicer, the Special Servicer, the REMIC Administrator and the Trustee,
a favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to the same limitations as set forth in
Section 6(e)(vii), the enforceability of the Pooling and Servicing Agreement
against such party. Such opinion may express its reliance as to factual matters
on representations and warranties made by, and
-13-
on certificates or other documents furnished by officers and/or authorized
representatives of parties to, this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the General Corporation Law of the State of Delaware (if
relevant), the laws of the State of New York and of each other state in which
the writer of the opinion is admitted to practice law and the federal law of the
United States.
(h) The Underwriters shall have received from Xxxxxx Xxxxxxxx LLP,
certified public accountants, a letter dated the Closing Date 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 letter, they have recalculated
such numbers and percentages set forth in the Prospectus as the Underwriters may
reasonably request and as are agreed to by Xxxxxx Xxxxxxxx LLP, compared the
results of their calculations to the corresponding items in the Prospectus, and
found each such number and percentage set forth in the Prospectus to be in
agreement with the results of such calculations.
(i) The Underwriters shall have received all opinions, certificates and
other documents required to be delivered by the respective Mortgage Loan Sellers
and their counsel in connection with their sales of Mortgage Loans to the
Company, and each such opinion shall be dated the Closing Date and addressed to
the Underwriters.
(j) The Underwriters shall have received all opinions rendered to the
Rating Agencies by counsel to the Company and the Mortgage Loan Sellers, and
each such opinion shall be dated the Closing Date and addressed to the
Underwriters.
(k) The Offered Certificates listed on Schedule II hereto shall have been
rated as indicated on such Schedule by the rating agency or agencies indicated.
(l) All proceedings in connection with the transactions contemplated by
this Agreement, and all documents incident hereto and thereto, shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such additional information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided by this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or by
either telegraph or telecopier confirmed in writing.
-14-
7. Reimbursement of Underwriters' Expenses. If the sale of any Offered
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof, other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of such Offered
Certificates.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person who controls any Underwriter within the meaning of the Act or the
Exchange Act of 1934, as amended (the "Exchange Act"), against claims, damages,
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any part of the Registration Statement when such part became
effective, or in the Registration Statement, any Preliminary Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission (in the case of any
Computational Materials or ABS Term Sheets (as defined in Section 9 below) in
respect of which the Company agrees to indemnify any Underwriter or any such
controlling person, as set forth below, when such are read in conjunction with
the Prospectus) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
against such loss, claim, damage, liability, or action; provided, however, that
(i) the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made (A)
therein in reliance upon and in conformity with written information furnished to
the Company by any Underwriter directly or through another Underwriter
specifically for use in the preparation thereof or (B) in any Current Report or
any amendment or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein or omission therefrom results (or
is alleged to have resulted) directly from an error (a "Collateral Error") in
the information concerning the characteristics of the Mortgage Loans furnished
by the Company to an Underwriter in writing or by electronic transmission that
was used in the preparation of any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to prospective investors, (ii)
such indemnity with respect to any Preliminary Prospectus Supplement shall not
inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Certificates which are the subject thereof if
such person did not receive a copy of the Prospectus (or the Prospectus as
amended or supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act and the untrue statement or omission of a material fact contained in such
-15-
Preliminary Prospectus Supplement was corrected in the Prospectus (or the
Prospectus as amended or supplemented) and (iii) such indemnity with respect to
any Collateral Error shall not inure to the benefit of any Underwriter or any
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials or ABS Term
Sheets that were prepared on the basis of such Collateral Error, if, prior to
the time of confirmation of the sale of the applicable Offered Certificates to
such person, the Company notified such Underwriter in writing of the Collateral
Error or provided in written or electronic form information superseding or
correcting such Collateral Error (in any such case, a "Corrected Collateral
Error"), and such Underwriter failed to notify such person thereof or to deliver
to such person corrected Computational Materials or 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). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to (i) written information relating to such Underwriter furnished to
the Company by such Underwriter directly or through another Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity, or (ii) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) delivered to prospective investors by such
Underwriter and furnished to the Company by such Underwriter pursuant to or as
contemplated by Section 9 and incorporated by reference in the Registration
Statement, any Preliminary Prospectus Supplement or the Prospectus or any
amendment or supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in respect
thereof, resulting from any Collateral Error, other than a Corrected Collateral
Error). This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements set
forth in the first two sentences of the last paragraph of the cover page and the
first sentence of the first paragraph and first sentence of the third paragraph
under the heading "Method of Distribution" in the Prospectus Supplement and any
Preliminary Prospectus Supplement constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity (other than any Computational
Materials or ABS Term Sheets furnished to the Company by any Underwriter), and
you confirm that such statements are correct. Any Computational Materials or ABS
Term Sheets (or amendments or supplements thereof) furnished to the Company by a
particular Underwriter shall relate exclusively to and be the several
responsibility of such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under 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
-16-
so to notify the indemnifying party will not relieve it from any liability which
it may have to anyindemnified 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 (which may be counsel representing the indemnifying party); provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel,
approved by you in the case of paragraph (a) of this Section 8 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.
(d) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under paragraph (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages, or
liabilities referred to in paragraph (a) or (b) above as follows:
-17-
(i) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which do not arise out of or are not based upon any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission to state a material fact in any Computational Materials or ABS
Term Sheets (or any amendments or supplements thereof), in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such discount and
the purchase price of the Offered Certificates specified in Schedule I hereto
and the Company is responsible for the balance; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Offered Certificates) be
responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Offered Certificates purchased by such
Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and liabilities (or actions
in respect thereof) which arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact or any omission or alleged omission
to state a material fact in any Computational Materials or ABS Terms Sheets (or
any amendments or supplements thereof), in such proportion as is appropriate to
reflect the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statement or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact in such Computational Materials or ABS Term Sheets (or any
amendments or supplements thereof) results from information prepared by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the preceding sentence of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
liability it or they may have otherwise than under this paragraph (d).
-18-
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, Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Xxxxxx Letters, the "No- Action Letters"),
if the filing of such materials with the Commission is a condition of the relief
granted in such letters and, in the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, such Collateral
Term Sheets have not previously been delivered to the Company as contemplated by
Section 9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company and its counsel
pursuant to this paragraph (a) shall be made in paper form and, in the case of
ABS Term Sheets, electronic format suitable for filing with the Commission.
(b) Each underwriter represents and warrants to and agrees with the
Company, as of the date hereof and as of the Closing Date, as applicable, that:
(i) if such Underwriter has provided any Collateral Term Sheets to
potential investors in the Offered Certificates prior to the date hereof
and if the filing of such materials with the Commission is a condition of
the relief granted in the PSA Letter, then in each such case such
Underwriter delivered to the Company and its counsel, in the manner
contemplated by Section 9(a), a copy of such materials no later than 10:30
a.m., New York City time, on the first business day following the date on
which such materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Offered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to prospective
investors in the Offered Certificates prior to the date hereof, except for
any preliminary prospectus with respect to the Offered Certificates and any
Computational Materials and ABS Term Sheets with respect to the Offered
Certificates which are not required to be filed with the Commission in
accordance with the No-Action Letters, and all Computational Materials and
ABS Term Sheets provided by such Underwriter to potential investors in the
Offered Certificates comply with the requirements of the No-Action Letters;
-19-
(iii) on the respective dates any such Computational Materials and/or
ABS Term Sheets with respect to the Offered Certificates referred to in
Section 9(b)(ii) were last furnished by such Underwriter to each
prospective investor, on the date of delivery thereof to the Company
pursuant to or as contemplated by this Section 9 and on the Closing Date,
such Computational Materials and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact, or, when read in
conjunction with the Prospectus, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates were furnished to a prospective
investor and on the date hereof, the Underwriters possessed, and on the
date of delivery of such materials to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, the Underwriters
will possess, the capability, knowledge, expertise, resources and systems
of internal control necessary to ensure that such Computational Materials
and/or ABS Term Sheets conform to the representations and warranties of the
Underwriters contained in subparagraphs (ii) and (iii) above of this
paragraph (b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to potential investors contained
and will contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus and, except
in the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets; and
(vi) on and after the date hereof, such Underwriter shall not deliver
or authorize the delivery of any Computational Materials, ABS Term Sheets
or other materials relating to the Offered Certificates (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriters agree that all Computational Materials and ABS Term
Sheets with respect to the Offered Certificates furnished to prospective
investors 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.
-20-
(d) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the Act, it shall be necessary in the opinion
of the Underwriters or their counsel to amend or supplement the Prospectus as a
result of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state a material fact
required, when considered in conjunction with the Prospectus, to be stated
therein or necessary to make the statements therein, when read in conjunction
with the Prospectus, not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the rules thereunder,
the Underwriters, at their expense (such expense to be allocated between them
based on the relative fault of the Underwriters) (or, if such amendment or
supplement is necessary due to a Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Company of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error), at the
expense of the Company), shall prepare and furnish to the Company for filing
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance and shall
distribute such amendment or supplement to each prospective investor in the
Offered Certificates that received such information being amended or
supplemented. Each Underwriter represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d)) or (ii) such filing is not required under the Act. Each
Underwriter represents and warrants to the Company, as of the date of delivery
of such amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
Notwithstanding the foregoing, none of the Underwriters make any representation
or warranty as to whether any such amendment or supplement of Computational
Materials or ABS Term Sheets with respect to the Offered Certificates included
or will include any untrue statement resulting directly from any Collateral
Error (except any Corrected Collateral Error, with respect to materials prepared
after the receipt by the Underwriters from the Company of notice of such
Corrected Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(e) If, at any time when a prospectus relating to the Offered Certificates
is required to be delivered under the Act, it shall be necessary in the opinion
of the Company or its counsel to amend or supplement the Prospectus as a result
of an untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters
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pursuant to or as contemplated by this Section 9 or the omission to state
therein a material fact required, when considered in conjunction with the
Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Prospectus, not misleading, or if it shall be
necessary to amend or supplement any Current Report to comply with the Act or
the rules thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters, at their
expense (such expense to be allocated between them based on the relative fault
of the Underwriters) (or, if such amendment or supplement is necessary due to a
Collateral Error (except any Corrected Collateral Error, with respect to
materials prepared after the receipt by the Underwriters from the Company of
notice of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error), at the expense of the Company), shall prepare
and furnish to the Company for filing with the Commission an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance and shall distribute such amendment or supplement to
each prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Notwithstanding the
foregoing, none of the Underwriters make any representation or warranty as to
whether any such amendment or supplement of Computational Materials or ABS Term
Sheets with respect to the Offered Certificates included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriters from the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral Error).
(f) The Underwriters (at their own expense) further agree to provide to the
Company any accountants' letters obtained relating to the Computational
Materials and/or ABS Term Sheets, which accountants' letters shall be addressed
to the Company or shall state that the Company may rely thereon; provided that
the Underwriters shall have no obligation to procure any such letter.
10. Substitution of Underwriters. (a) If any Underwriter shall fail to take
up and pay for the amount of the Offered Certificates agreed by such Underwriter
to be purchased under this Agreement, upon tender of such Offered Certificates
in accordance with the terms hereof, and the amount of the Offered Certificates
not purchased does not aggregate more than 10% of the total amount of the
Offered Certificates set forth in Schedule I hereof, the remaining Underwriters
shall be obligated to take up and pay for the Offered Certificates that the
withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the amount of the
Offered Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender of
such Offered Certificates in accordance with the terms hereof, and the amount of
the Offered Certificates not purchased aggregates more than 10% of the total
amount of the Offered Certificates set forth in Schedule I hereto, and
arrangements
-22-
satisfactory to the remaining Underwriters and the Company for the purchase of
such Certificates by other persons are not made within 36 hours thereafter, this
Agreement shall terminate. In the event of any such termination the Company
shall not be under any liability to any Underwriter (except to the extent
provided in Section 5(g) and Section 8 hereof) nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of the Offered
Certificates such Underwriter agreed to purchase hereunder) be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or any other Underwriter by reason
of its failure to take up and pay for Offered Certificates as agreed by such
Defaulting Underwriter.
11. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters by notice given to the Company prior to
delivery of and payment for all Offered Certificates if prior to such time (i)
trading in securities of the Company or any affiliate on the New York Stock
Exchange shall have been suspended or limited, or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Underwriters, impractical
to market the Offered Certificates.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Offered Certificates. The provisions of
Sections 7, 8 and 9 hereof shall survive the termination or cancellation of this
Agreement.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or
either telegraphed or transmitted by telecopier and confirmed to them at the
addresses set forth on Schedule I hereto (or, in the case of any Underwriter, 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 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: X. Xxxxx
XxXxxxx (or at such other address as may be furnished by the Company to each
Underwriter in accordance with this Section 13).
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
-23-
15. Applicable Law; Counterparts. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York
applicable to agreements made and to be performed entirely in said State. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument.
-24-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: ___________________________________
Name:
Title:
Accepted at New York, New York
as of the date first written above.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: _____________________________
Name:
Title:
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Class S
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: X. Xxxxx XxXxxxx
Class A-1A
Class A-1B
Class A-2 $58,887,000
Class A-3 $65,085,000
Class A-4 $18,596,000
Class B-1 $46,489,00
Class B-2 $15,497,00
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Class S $1,239,717,562
Xxxxx Incorporated Class A-1A $218,788,000
000 Xxxxx Xxxxxx Class A-1B $686,205,000
New York, New York, 10281
-----------------
(1) Notional Amount
SCHEDULE II
Registration Statement No. 333-59167
Basic Prospectus dated March 1, 1999
Prospectus Supplement dated March 15, 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series
1999-CG1, Class S,
Class A-1A, Class A-1B,
Class A-2, Class A-3,
Class A-4, Class B-1
and Class B-2
Cut-off Date: March 1, 1999
Closing: 10:00 a.m. on March 19, 1999
at the offices of
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Initial
Aggregate Certificate
Principal Balance
or Notional Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
----------------- ------------------ ----------------- ----------------- ----------
Class S $1,239,717,562 1.0980% Aaa/AAA
Class A-1A $218,788,000 6.0800% Aaa/AAA
Class A-1B $686,205,000 6.4600% Aaa/AAA
Class A-2 $58,887,000 6.6000% Aa2/AA
Class A-3 $65,085,000 6.7700% A2/A
Class A-4 $18,596,000 6.9200% A3/A-
Class B-1 $46,489,000 7.4866% Baa2/BBB
Class B-2 $15,497,000 7.4866% Baa3/BBB
----------
(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 each of Xxxxx'x Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
