COMMERCIAL MORTGAGE ACCEPTANCE CORP.
UNDERWRITING AGREEMENT
As of December 22, 1997
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Commercial Mortgage Acceptance Corp., a Missouri corporation
(the Company), proposes to sell to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (the "Underwriter") the commercial mortgage pass-through
certificates identified in Schedule I hereto (the "Offered Certificates"),
pursuant to this Underwriting Agreement (this "Agreement").
The Certificates will evidence beneficial ownership interests
in a trust fund (the "Trust Fund") to be formed by the Company and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans") to be purchased by the Company
from ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc. (the " Mortgage Loan Seller"). The
Certificates will be issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1997, among the
Company as Company, LaSalle National Bank as trustee (the "Trustee"), ABN AMRO
Bank N.V. as fiscal agent (the "Fiscal Agent") and Midland Loan Services, L.P.
as master servicer (the "Master Servicer") and the parties named as special
servicers on the signature page thereto (the "Special Servicers"). Of the
Certificates to be issued, only the Class A-1, Class A-2, Class A-3, Class A-4,
Class IO, Class B, Class C, Class D and Class E Certificates (the "Offered
Certificates") will be offered publicly and are subject of this Agreement. The
Class F-1, Class F-2, Class G, Class R-I, Class R-II and Class R-III
Certificates (the "Private Certificates") will not be registered under the
Securities Act of 1933, as amended (the "1933 Act"). The Private Certificates
are being sold, simulta-
neously herewith by the Company, to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, as initial purchaser, pursuant to a Purchase Agreement dated
December 22, 1997 (the "Certificate Purchase Agreement"). The Offered
Certificates and the Mortgage Loans are described more fully in the Prospectus
(as hereinafter defined).
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333- 13725), (the
"Registration Statement") on Form S-3 for the registration of the Offered
Certificates under the 1933 Act, which registration statement has become
effective. In addition, the Company proposes to file with the Commission in
relation to the Offered Certificates either (i) a prospectus supplement in
accordance with the provisions of paragraph (b) of Rule 424 ("Rule 424(b)").
Each prospectus used before such registration statement became effective, any
preliminary form of the Prospectus that has heretofore been filed pursuant to
Rule 424(b) that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "Preliminary Prospectus."
Such registration statement, including the exhibits thereto, schedules thereto,
if any, and the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, at the time it became effective, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The prospectus
included in the Registration Statement, at the time the Registration Statement,
as amended, became effective, or as subsequently filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, is hereinafter called the "Basic
Prospectus"; such supplement, dated December 22, 1997 to the form of prospectus
relating to the Offered Certificates, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the
form in which it shall be filed with the Commission pursuant to Rule 424 (b) is
hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and
the Prospectus Supplement, together, hereinafter called the "Prospectus". For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus or the Prospectus or any
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amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any Preliminary Prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any Preliminary Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which
is incorporated by reference in the Registration Statement, such Preliminary
Prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as
of the date hereof, as of the Closing Date referred to in Section 3 hereof, and
agrees with the Underwriter as follows:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. The
Prospectus as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the 1933 Act
and the rules and regulations thereunder (the "1933 Act Regulations");
and the information in the Registration Statement concerning the
Company, as of its Effective Date, did not contain any untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. Neither
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the information in the Prospectus concerning the Company, nor any
amendments or supplements thereto, as of the date of the Prospectus
Supplement, did not and as at the Closing Date, 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 information
therein concerning the Company, in the light of the circumstances
under which they were made, not misleading; and the prospectus filed
as part of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the 1933 Act
Regulations.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, (when
they became effective or) at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations or
the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations"), as applicable, and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus
was issued and at the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading provided, however, this representation and
warranty shall not apply with respect to any statement or omission
made in reliance upon or in conformity with information furnished in
writing to the Company by the Underwriter.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of (x) the Company and its
subsidiaries considered as one enterprise or (y) the Master Servicer
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or the Master Servicer or any of their respective
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company or the Master Servicer,
as the case may be, and their respective subsidiaries considered as
one enterprise.
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(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Missouri with corporate power and authority to own its properties
and to conduct its business as now conducted by it and to enter into
and perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(v) The Company is not in violation of its charter and
by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease, or other
instrument to which any of the property of the Company is subject, the
effect of which would have a Material Adverse Effect. The execution,
delivery, and performance of this Agreement and the Pooling and
Servicing Agreement and the consummation of the transactions
contemplated herein and therein and compliance by the Company with its
obligations hereunder and thereunder have been duly authorized by all
the necessary corporate action and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property of the
Company pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company is a party or by
which it may be bound, or to which any of the property or assets of
the Company is subject, the effect of which would have a Material
Adverse Effect.
(vi) The Certificates have been duly authorized for issuance
and sale pursuant to this Agreement and the Pooling and Servicing
Agreement (or will have been so authorized prior to the issuance of
the Certificates) and, when duly authorized, executed, issued,
authenticated and delivered by the Trustee pursuant to the provisions
of this Agreement and of the Pooling and Servicing Agreement against
payment of the consideration therefor in accordance with this
Agreement and the Certificate Purchase Agreement, the Certificates
will be duly and validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
laws relating to or affecting enforcement of creditors' rights or by
general equity principles.
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(vii) This Agreement has been, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed and
delivered by the Company. This Agreement constitutes, and as of the
Closing Date the Pooling and Servicing Agreement will constitute, a
legal, valid 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, reorganization,
receivership, moratorium or other similar laws affecting the
enforcement of the rights of creditors generally, (B) general
principles of equity, 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 such public policy considerations
limit the enforceability of the provisions of this Agreement that
purport to provide indemnification from securities law liabilities.
(viii) At the time of the execution and delivery of the
Pooling and Servicing Agreement, the Company (A) will convey to the
Trustee, or cause to be conveyed to the Trustee, all of its right,
title and interest in and to the Mortgage Loans that are transferred
by it to the Trustee, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") granted by or imposed upon the Company, (B)
will not have assigned to any person any of its right, title or
interest in such Mortgage Loans or in the Pooling and Servicing
Agreement or the Certificates, and (C) will have the power and
authority to transfer such Mortgage Loans to the Trustee and to sell
the Offered Certificates to the Underwriter, and upon delivery to the
Underwriter of the Certificates, the Underwriter will have good title
to the Certificates and the Certificates will be free of Liens.
(ix) Neither the Company nor the Trust Fund is required to be
registered as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(x) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company will report the
transfer of the Mortgage Loans to the Trustee in exchange for the
Certificates and the sale of the Certificates to the Underwriter
pursuant to this Agreement as a sale of the interests in the Mortgage
Loans evidenced by the Certificates. The consideration received by the
Company upon the sale of the Certificates
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to the Underwriter will constitute reasonably equivalent value and
fair consideration for the Certificates. The Company will be solvent
at all relevant times prior to, and will not be rendered insolvent by,
the sale of the Certificates to the Underwriter. The Company is not
selling the Certificates to the Underwriter with any intent to hinder,
delay or defraud any of the creditors of the Company.
(xi) At the Closing Date, the respective classes of Offered
Certificates shall have been assigned ratings no lower than those set
forth in Schedule I hereto by the nationally recognized statistical
rating organizations identified in Schedule I hereto (the "Rating
Agencies").
(xii) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement, the Pooling and Servicing Agreement and the Certificates
payable by the Company (other than income taxes) have been paid or
will be paid at or prior to the Closing Date.
(xiii) There are no actions, suits or proceedings pending
before or, to the knowledge of the Company, threatened by any court,
administrative agency or other tribunal to which the Company is a
party or of which any of its properties is the subject (a) which if
determined adversely to the Company would have a Material Adverse
Effect, (b) asserting the invalidity of this Agreement, the Pooling
and Servicing Agreement or the Certificates, (c) seeking to prevent
the issuance of the Certificates or the consummation by the Company of
any of the transactions contemplated by the Pooling and Servicing
Agreement or this Agreement, as the case may be, or (d) which might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement, this Agreement or the Certificates.
(xiv) The Company possesses all material licenses,
certificates, authorities or permits issued by appropriate state,
federal, or foreign regulatory agencies and bodies necessary to
conduct the business now conducted by it and as described in the
Prospectus, and the Company has not received notice of any proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which if decided adversely to the
Company would singly, or in the aggregate, have a Material Adverse
7
Effect or materially and adversely affect the holders of the
Certificates or their interests in the Mortgage Loans.
(xv) There are no contracts or documents which are required
to be described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(xvi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Certificates
hereunder or the consummation of the transactions contemplated by this
Agreement or for the due execution, delivery or performance of the
Pooling and Servicing Agreement by the Company, except such as have
been already obtained or as may be required under the 1933 Act or the
1933 Act Regulations or state securities laws and except for such
filings, authorizations, approvals, consents, licenses, orders,
registrations, qualifications or decrees the failure of which to
obtain would not have a Material Adverse Effect or materially
adversely affect the holders of the Certificates or their interests in
the Mortgage Loans.
(xvii) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating
to disclosure of doing business with Cuba, codified as Section 517.075
of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company delivered to the Underwriter or to counsel for the
Underwriter shall be deemed a representation and warranty by the Company to the
Underwriter as to the matters covered thereby.
At the Closing Date, each of the representations and
warranties of the Company set forth in the Pooling and Servicing Agreement will
be true and correct in all material respects.
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(c) Term Sheets and Computational Materials. The Underwriter
represents and warrants to the Company that:
(i) the Underwriter either (a) has not provided any potential
investor with a Collateral Term Sheet (such term having the meaning
given such term in the no-action letter, dated May 20, 1994, issued by
the commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇,
Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association, dated
May 24, 1994 (collectively, the "▇▇▇▇▇▇/PSA Letter"), and the
requirements of the no-action letter, dated February 17, 1995, issued
by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the ▇▇▇▇▇▇/PSA Letter, the "No-Action
Letters")) that is required to be filed with the Commission within
two business days of first use under the terms of the PSA Letter or
(b) has, substantially contemporaneously with its first delivery of
such Collateral Term Sheet to a potential investor, delivered such
Collateral Term Sheet to the Company, which Collateral Term Sheet, if
any, is attached to this Agreement as Exhibit B
(ii) the Underwriter either (a) has not provided any
potential investor with a Structural Term Sheet or Computational
Materials (such terms having the meanings given to such terms in the
No-Action Letters), or (b) has provided any such Structural Term Sheet
or Computational Materials to the Company, which Structural Term
Sheets and Computational Materials, if any, are attached to this
Agreement as Exhibit C.
(iii) each Collateral Term Sheet bears a legend indicating
that the information contained therein will be superseded by the
description of the collateral contained in the Prospectus Supplement
and, except in the case of the initial Collateral Term Sheet, that
such information supersedes the information in all prior Collateral
Term Sheets.
(iv) each Structural Term Sheet and all Computational
Materials bear a legend substantially in the form attached to this
Agreement as Exhibit D.
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(v) The Underwriter has not and will not, without the prior
written consent of the Company, provide any Collateral Term Sheets,
Structural Term Sheets or Computational Materials, other than any
referred to in clauses (ii) above, to any investor after the date of
this Agreement.
SECTION 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in
reliance upon the representations and warranties herein contained, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at the related purchase price set forth on Schedule I hereto,
Offered Certificates of each class thereof having an actual amount as set forth
on Schedule I hereto. There will be added to the purchase price of the
Certificates an amount equal to interest accrued thereon pursuant to the terms
thereof from December 1, 1997 until but excluding the Closing Date.
SECTION 3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of,
the Certificates shall be made at 10:00 A.M. New York City time on December 30,
1997, which date and time may be postponed by agreement among the Underwriter
and the Company (such time and date of payment and delivery, the "Closing
Date"). Payment shall be made to the Company in immediately available funds
wired to such bank as may be designated by the Company, against delivery of the
Offered Certificates. The Certificates shall be in such authorized
denominations and registered in such names as the Underwriter may request in
writing at least two business days before the Closing Date. The Certificates
will be made available for examination by the Underwriter not later than 10:00
A.M. New York City time on the last business day prior to the Closing Date.
Except as otherwise set forth in Schedule I, delivery of the Certificates shall
be made at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon by the Underwriter and the Company.
SECTION 4. Offering by Underwriter.
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(a) It is understood that the Underwriter proposes to offer
the Offered Certificates for sale as set forth in the Prospectus. It is further
understood that the company, in reliance upon an exemption from the Attorney
General of the State of new York granted pursuant to Policy Statement 105, has
not and will not file an offering statement pursuant to Section 352-c of the
General Business Law of the State of New York with respect to the Offered
Certificates. The Underwriter therefore agrees that sales of the Offered
Certificates made by the Underwriter in and from the State of New York will be
made only to institutional investors within the meaning of Policy Statement
105.
(b) The Underwriter further agrees that it shall promptly
provide the Company with such information as to matters of fact as the Company
may reasonably request to enable it to comply with its reporting requirements
with respect to each class of Offered Certificates to the extent such
information can in the good faith judgment of the Underwriter be determined by
it.
SECTION 5. Covenants of the Company.
The Company covenants with the Underwriter as follows:
(a) The Company will give the Underwriter notice of its
intention to file or prepare any amendment to the Registration Statement at any
time prior to the Closing Date or any amendment or supplement to the Prospectus
at any time hereafter, and will furnish the Underwriter with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be. The Company, subject to Section 3(b) will
notify the Underwriter immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of
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prospectus transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Company will give the Underwriter notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Underwriter with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use
any such document to which the Underwriter or counsel for the Underwriter shall
reasonably object.
(c) Upon request, the Company will deliver to the Underwriter
and its counsel, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Underwriter
and its counsel, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits). The
copies of the Registration Statement and each amendment thereto furnished to
the Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇.
(d) The Company will furnish to the Underwriter, from time to
time during the period when the Prospectus is required to be delivered under
the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934
Act"), such number of copies of the Prospectus (as amended or supplemented) as
the Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act or the respective applicable rules and regulations of
the Commission thereunder.
(e) If, during the period after the first date of the public
offering of the Offered Certificates in which a prospectus relating to the
Offered Certificates is required to be delivered under the 1933 Act, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the
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Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, the Company will forthwith amend or
supplement the Prospectus so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing, at the time it is delivered to a
purchaser, not misleading, and the Company will furnish to the Underwriter a
reasonable number of copies of such amendment or supplement.
(f) The Company will use its best efforts, in cooperation
with the Underwriter, to qualify the Offered Certificates for offering and sale
under the applicable securities laws of such states and other jurisdictions as
the Underwriter may designate and to maintain such qualifications in effect for
a period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports as
may be required by the laws of such jurisdiction to continue such qualification
in effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement. The Company
will also supply the Underwriter with such information as is necessary for the
determination of the legality of the Securities for investment under the laws
of such jurisdictions as the Underwriter may request.
(g) The Company will cause the Trust created by the Pooling
and Servicing Agreement to timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to the holders of the
Offered Certificates as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) The Company will use the net proceeds received by it from
the sale of the Offered Certificates in the manner specified in the Prospectus
under "Use of Proceeds".
(i) During the period commencing on the date of the
Prospectus and ending on the Closing Date, the Company will not, without the
prior written consent
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of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, issue, sell, offer or contract to
sell, grant any option for the sale of, or otherwise transfer or dispose of,
any securities of the Company.
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k) The Underwriter shall be responsible for the payment of
its counsel fees and costs.
The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto (but excluding the cost of filing the preliminary and final prospectus,
term sheets and appraisals), and (ii) the fees and disbursements of the
Company's counsel, accountants and other advisors.
In addition, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc. will pay or
cause to be paid all the costs and expenses associated with the offering,
including (i) costs of printing, filing and delivering the Preliminary
Prospectus, any Term Sheets and of the Prospectus and any amendments or
supplements thereto, (iii) the qualification of the Offered Certificates under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriter in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (iv) the preparation,
printing and delivery to the Underwriter of copies of the Blue Sky Survey and
any supplement thereto, (v) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Certificates, (vi) any fees payable in connection with the
rating of the Certificates, and (vii) any fees and expenses of the accountants
in connection with the preparation of their agreed- upon procedures letters.
(l) If the Company receives notice that a stop order
suspending the effectiveness of the Registration Statement or preventing the
offer and sale of the
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Offered Certificates is in effect, the Company will immediately advise the
Underwriter of the issuance of such stop order.
(m) The Company 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 and the Mortgage
Pool to the extent that such information is not set forth in the Prospectus.
The Company will also file with the Commission a report on Form 8-K setting
forth all Computational Materials and Structural Term Sheets provided to the
Company by the Underwriter and identified by it as such within the time period
allotted for such filing pursuant to the No-Action Letters; provided, however,
that prior to such filing of the Computational Materials and Structural Term
Sheets (other than any Structural Term Sheets that are not based on the Pool
Information) by the Company (A) the Underwriter must comply with its
obligations pursuant to Section 4 and (B) if the Company determines that the
methodology on which all or any part of such Computational Materials and
Structural Term Sheets were prepared is not substantially the same as (x) the
methodology on which information in the Prospectus Supplement (or Preliminary
Prospectus Supplement) was prepared or (y) a methodology acceptable to the
Company and as to the accuracy of which the Company was otherwise given comfort
satisfactory to the Company, the Company must receive a letter from Deloitte &
Touche LLP ("Deloitte"), certified public accountants, satisfactory in form and
substance to the Company, to the effect that such accountants have performed
certain specified procedures, all of which have been agreed to by the Company,
as a result of which they have determined that the information included in the
Computational Materials and Structural Term Sheets (if any) as to which the
Company has made such a determination and which they have examined in
accordance with such specified procedures is accurate except as to such matters
that are not deemed by the Company to be material. The foregoing letter shall
be at the expense of the Underwriter that provided the Computational Materials
to the Company. The Company shall file any corrected Computational Materials
described in Section 4(b)(vi) as soon as practicable following receipt
thereof.
(n) If this Agreement is terminated by the Underwriter in
accordance with the provisions of Section 6 (if due to failure to satisfy (a),
(b), (c) and (e)) or 10(a)(i) hereof, the Company shall reimburse the
Underwriter for all of its out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriter.
15
SECTION 6. Conditions of Underwriter's Obligations.
The Underwriter's obligation to purchase the Offered
Certificates allocated to it as set forth on Schedule I hereto shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof and as of the Closing Date, to
the performance by the Company of its obligations hereunder and to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Company's knowledge, threatened by the Commission.
(b) On the Closing Date, the Underwriter shall have received:
(i) one or more opinions, dated the Closing Date, of counsel
to the Company, in form and substance satisfactory to the Underwriter,
substantially to the effect that:
A. The Company is a corporation in good standing
under the laws of the State of Missouri and has the corporate
power and authority under such laws to enter into and perform
its obligations under each of the Pooling and Servicing
Agreement and this Agreement.
B. Each of the Pooling and Servicing Agreement and
this Agreement has been duly authorized, executed and
delivered by the Company.
C. Each of the Pooling and Servicing Agreement and
this Agreement, upon due authorization, execution and
delivery by the other parties thereto, will constitute 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, whether enforcement is sought in a
proceeding in equity or at law and (c) public
16
policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the
enforceability of provisions which purport to provide
indemnification from securities law liabilities.
D. The Certificates, when duly and validly
authorized, executed, authenticated, issued and delivered by
the Trustee in accordance with the Pooling and Servicing
Agreement and paid for in accordance with this Agreement, the
Pooling and Servicing Agreement and the Certificate Purchase
Agreement, will be entitled to the benefits of the Pooling
and Servicing Agreement.
E. The Registration Statement is effective under the
1933 Act and, to such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or threatened under Section
8(d) of the 1933 Act.
F. At the time it became effective, the Registration
Statement (other than any financial or statistical data and
supporting schedules included therein, as to which such
counsel renders no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and
the applicable rules and regulations thereunder.
G. To such counsel's knowledge, there are no
material contracts, indentures or other documents of the
Company required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto and any
documents required to be filed on Form 8K after the date of
this Agreement.
H. The offer and sale of the Private Certificates by
the Company to the Initial Purchaser (as defined in the
Certificate Purchase Agreement) in the manner contemplated
by the Certificate
17
Purchase Agreement does not require registration of the
Private Certificates under the 1933 Act.
I. The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended. Neither the Company nor the Trust Fund is
required to be registered under the Investment Company Act of
1940, as amended.
J. No consent, approval, authorization or order of
any State of New York, State of Missouri or federal court or
governmental agency or body is required for the consummation
by the Company of the transactions contemplated by the
Pooling and Servicing Agreement and this Agreement, except
(i) such as have been obtained under the 1933 Act, (ii) such
as may be required under the securities or real estate
syndication laws of any jurisdiction in connection with the
purchase and the offer and sale of the Certificates by the
Underwriter, as to which such counsel expresses no opinion
and (iii) any consent, approval, authorization or order which
is not a pre-condition required with respect to performance
by the Company but is itself a future obligation of the
Company under this Agreement, such as, by way of
illustration, but not in limitation of the generality of the
foregoing, any recordation of the assignments of the Mortgage
Loans pursuant to the Pooling and Servicing Agreement that
has not yet been completed.
K. Neither the offer and sale of the Certificates
nor the consummation of any other of the transactions
contemplated in or the fulfillment of the terms of the
Pooling and Servicing Agreement and this Agreement by the
Company, will conflict with or result in a breach or
violation of any term or provision of, or constitute a
default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the
articles of incorporation or by-laws of the Company or, to
the knowledge of such counsel, any indenture or other
material agreement or instrument to which the Company is a
party or by which it is bound, or any State of New York,
State of Missouri or federal statute or regulation applicable
to the Company or, to the knowledge of such counsel, any
order of any State of New York, State of Missouri or federal
court, regulatory body, administrative agency or governmental
body having jurisdiction
18
over the Company except in each case for any conflict,
breach, violation or default that would not have a Material
Adverse Effect and would not materially and adversely effect
the interests of the holders of the Certificates therein or
their interests in the Mortgage Loans.
L. There are no actions, suits, proceedings pending,
before or, to such counsel's knowledge, overtly threatened in
writing by any New York State, Missouri State or federal
court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the
subject (a) which, if determined adversely to the Company,
would have a Material Adverse Effect, (b) asserting the
invalidity of the Pooling and Servicing Agreement, this
Agreement or the Certificates, (c) seeking to prevent the
issuance of the Certificates or the consummation by the
Company of any of the transactions contemplated by the
Pooling and Servicing Agreement and this Agreement or (d)
which might materially and adversely affect the performance
by the Company of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement and
this Agreement.
In connection with our participation in the preparation of
the Prospectus (including for purposes of this paragraph, any further
amendment or supplement thereto made by the Company prior to the time of
delivery (the "Time of Delivery") of the Offered Certificates to purchasers on
the Closing Date), we have not independently verified the accuracy,
completeness or fairness of the statements contained in the Prospectus, and,
without limiting the generality of the foregoing, we, with your consent, have
not reviewed any of the Mortgage Files relating to the Mortgage Loans or any of
the Term Sheets prepared or used in connection with the offering or sale of the
Offered Certificates, but based upon our understanding of the transactions
contemplated by the Underwriting Agreement and the Pooling and Servicing
Agreement, we have reviewed such matters as we deemed appropriate. The
limitations inherent in the review made by us and the knowledge available to us
are such that we are unable to assume, and do not assume, any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Prospectus. On the basis of our participation in the preparation of the
Prospectus, the review made by us as described above and our participation in
telephonic conferences with representatives of the Company, the Mortgage Loan
Seller, the Underwriter and others at which the contents of the Prospectus were
discussed, and relying as to facts necessary to the
19
determination of materiality to the extent we may do so in the exercise of our
professional responsibility upon the certificates and statements of officers
and other representatives of the Company, the Mortgage Loan Seller, the
Underwriter and others, no facts have come to our attention that lead us to
believe that as of the date of the Prospectus or as of the Time of Delivery,
the Prospectus (excluding any financial or statistical data included or
incorporated by reference therein and the sections of the Prospectus under the
caption "Description of the Mortgage Pool," as to which we do not comment)
contains an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading.
(c) On the Closing Date, the Underwriter shall have received
a favorable opinion, dated the Closing Date, of federal tax counsel to the
Company with respect to the Certificates (i) regarding the qualification of
each of REMIC I, REMIC II and REMIC III (as such terms are defined in the
Pooling and Servicing Agreement) as a real estate mortgage investment conduit
within the meaning of Sections 860A through 86OG of the Internal Revenue Code
of 1986, as amended, and (ii) to the effect that the statements in the Basic
Prospectus and the Prospectus Supplement under the headings "Material Federal
Income Tax Consequences," to the extent that they constitute matters of federal
law or legal conclusions with respect thereto, while not purporting to discuss
all possible consequences of investment in the Certificates, are correct in all
material respects with respect to those consequences or matters that are
discussed therein.
(d) On the Closing Date, the Underwriter shall have received
a favorable opinion, dated the Closing Date, of Skadden, Arps with respect to
the Offered Certificates to the effect that the statements in the Basic
Prospectus and the Prospectus Supplement under the heading "ERISA
Considerations," to the extent that they constitute matters of federal law or
legal conclusions with respect thereto, are correct in all material respects
with respect to those consequences or matters that are discussed therein.
(e) The Company shall have delivered to the Underwriter a
certificate, dated the Closing Date, of the President, an Executive Vice
President or a Vice President of the Company to the effect that the signer of
such certificate has examined, or has relied upon an examination conducted by
appropriate persons authorized by him, of this Agreement, the Prospectus, the
Pooling and Servicing Agreement and
20
various other closing documents, and that, to the best of his or her knowledge
after reasonable investigation:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects;
(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 hereunder
at or prior to the Closing Date;
(iii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the
Commission; and
(iv) the Company shall have delivered to the
Underwriter a certificate, dated the Closing Date, of the
President or a Vice President of the Company to the effect
that since the date as of which information is given in the
Prospectus there has been no Material Adverse Effect.
(f) The Company and the Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated the Closing
Date, in form and substance satisfactory to the Underwriter, stating in effect
that:
(i) they have performed certain specified procedures
as a result of which they have determined that the
information of an accounting, financial or statistical nature
set forth in the Prospectus Supplement under the captions
"Summary of the Prospectus Supplement," "Description of the
Mortgage Pool" and "Yield and Maturity Considerations" and on
Annex A agrees with the data sheet or computer tape prepared
by or on behalf of the Mortgage Loan Seller, unless otherwise
noted in such letter; and
(ii) they have compared the data contained in the
data sheet or computer tape referred to in the immediately
preceding clause (i) to information contained in an agreed
upon sampling of the Mortgage Loan files and in such other
sources as shall be specified by them, and found such data
and information to be in agreement, unless otherwise noted in
such letter.
21
(g) On or before the Closing Date, the Underwriter shall have
received confirmation satisfactory to it that the Certificates have received
the ratings set forth in Schedule I.
(h) On or before the Closing Date, the Underwriter and
counsel to the Underwriter shall have been furnished with such other documents
and opinions as they may reasonably require, including, without limitation,
opinions of counsel to the Trustee, the Master Servicer and the Special
Servicer, for the purpose of enabling them to pass upon the issuance and sale
of the Certificates as herein contemplated and related proceedings, or the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Certificates as herein
contemplated shall be satisfactory in form and substance to the Underwriter and
counsel to the Underwriter.
(i) On or before the Closing Date, the Underwriter shall have
received an opinion from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP in form and
substance satisfactory to the Underwriter.
(j) If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to the Company at any time at or prior
to Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 5 and except that Sections 1,
7, 8 and 9 shall survive any such termination and remain in full force and
effect.
SECTION 7. Indemnification.
(a) Indemnification of Underwriter. The Company agrees to
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
A. against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact regarding the Company
22
and contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission
therefrom of a material fact regarding the Company and
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material
fact regarding the Company and contained in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact regarding the Company and necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading
(recognizing that the only information regarding the Company
in the Prospectus Supplement is on page S-8 under the
subheadings "Depositor" and "Master Servicer"and on page
S-285 under the heading "THE MASTER SERVICER" and in the
Prospectus on page 1 under the subheadings "Depositor" and
"Master Servicer" and on page 16 under the headings "THE
DEPOSITOR" and "THE MASTER SERVICER");
B. against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 8(b) below) any such settlement is effected with
the written consent of the Company; and
C. against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by the Underwriter), reasonably incurred in
investigating, preparing or defending against any
litigation, or any investigation or
23
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is
not paid under (A) or (B) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. The
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)(A) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use in the Registration Statement (or
any amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 7(a)(A) above, counsel to the indemnified parties shall be
selected by the Underwriter, and, in the case of parties indemnified pursuant
to Section 7(b) above, counsel to the indemnified parties shall
24
be selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. 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 7 or Section 8 hereof (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) Settlement without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(B) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for
in Section 8 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriter on the other hand from the offering
of the Offered Certificates pursuant to this Agree-
25
ment or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriter on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriter, in each case
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriter
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Underwriter were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Offered Certificates underwritten by it and
distributed to the public were
26
offered to the public exceeds the amount of any damages which the Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of the
Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the Underwriter.
SECTION 10. Termination of Agreement.
(a) The Underwriter may terminate this Agreement, by notice
to the Company, at any time at or prior to Closing Date (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any Material Adverse Effect,
or (ii) if there has occurred any material adverse change in the financial
markets in the United States or the international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriter,
impracticable to market the Offered Certificates or to enforce contracts for
the sale of the Offered Certificates, or (iii) if trading in any securities of
the Company
27
has been suspended or materially limited by the Commission, or if trading
generally on the American Stock Exchange or the New York Stock Exchange has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of
said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority,
or (iv) if a banking moratorium has been declared by either federal or New York
authorities.
(b) The Underwriter may terminate its obligations under this
Agreement, by notice to the Company, at any time at or prior to the Closing
Date if the sale of the Certificates provided for herein is not consummated
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement.
(c) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 5 hereof, and provided further that
Sections 1, 7, 8 and 9 shall survive such termination and remain in full force
and effect.
SECTION 11. Notices.
All notices and other communications hereunder shall be in
writing and shall be deemed duly given if mailed or transmitted by any standard
form of communication. Notices to The Underwriter shall be directed to ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Real Estate Investment Banking and
notices to the Company shall be directed to Commercial Mortgage Acceptance
Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇, with a copy to any party, such other address as may hereafter be
furnished by such party to the others in writing.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Underwriter and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person,
28
firm or corporation, other than the Underwriter and the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their respective successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Offered Certificates
from an Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said State.
SECTION 14. Miscellaneous.
This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof. 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. This Agreement may be
signed in any number of counterparts, each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriter and the Company in accordance with its terms.
Very truly yours,
COMMERCIAL MORTGAGE
ACCEPTANCE CORP.
By:_______________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ___________________________
Name:
Title:
30
SCHEDULE 1
---------------------------------------------------------------------------------------------------------------------
CLASS OF INITIAL CER- PERCENTAGE INITIAL RATED FINAL RATING
OFFERED TIFICATE OF INITIAL PASS- DISTRIBU-
CERTIFICATES BALANCE OR POOL THROUGH TION DATE
NOTIONAL BALANCE RATE
AMOUNT
---------------------------------------------------------------------------------------------------------------------
Class A-1 142,191,000 16.76% 6.50% December Aaa/AAA
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class A-2 117,378,000 13.83% 6.53% December Aaa/AAA
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class A-3 220,490,334 25.99% 6.57% December Aaa/AAA
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class A-4 96,908,666 11.42% 6.735% December Aaa/AAA
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class B 59,394,000 7.00% 6.64758% December Aa2/AA
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class C 46,666,000 5.50% 6.77758% December A2/A
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class D 46,667,000 5.50% 7.05758% December Baa2/BBB
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class E 16,969,000 2.00% 7.22758% December Baa3/BBB-
15, 2030
---------------------------------------------------------------------------------------------------------------------
Class IO 751,574,263 N/A .96241% December Aaa/NR
15, 2030
---------------------------------------------------------------------------------------------------------------------
A-1-1
SCHEDULE B
The purchase price to be paid by the Underwriter for the
Securities shall be $796,535,232.
Sch B-1
EXHIBIT D
Legend for Structural Term Sheets and Computational Materials
This information does not constitute either an offer to sell or a solicitation
of an offer to buy any of the securities referred to herein. Information
contained herein is confidential and provided for information only, does not
purport to be complete and should not be relied upon in connection with any
decision to purchase the securities. This information supersedes any prior
versions hereof and will be deemed to be superseded by any subsequent versions
including, with respect to any description of the securities or the underlying
assets, the information contained in the final Prospectus and accompanying
Prospectus Supplement. Offers to sell and solicitations of offers to buy the
securities are made only by the final Prospectus and the related Prospectus
Supplement.
Sch B-2
