PNC MORTGAGE ACCEPTANCE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CM1
UNDERWRITING AGREEMENT
November 22, 1999
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PNC Capital Markets, Inc.
One PNC Plaza, 26th Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Prudential Securities Incorporated
One New York Plaza, 18th Floor
New York, New York 10292
Ladies and Gentlemen:
PNC Mortgage Acceptance Corp., a Missouri corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
to Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJSC"), PNC Capital
Markets, Inc. ("PNC") and Prudential Securities Incorporated ("Prudential"; and,
collectively with DLJSC and PNC, the "Underwriters"), their respective
allocations, as set forth in Schedule I hereto, of those classes (each, a
"Class") of the Company's Commercial Mortgage Pass-Through Certificates, Series
1999-CM1, specified in Schedule II hereto (the "Offered Certificates"). The
Offered Certificates, together with the other commercial mortgage pass-through
certificates of the same series (the "Private Certificates"; and, collectively
with the Offered Certificates, the "Certificates"), will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") to be
dated as of December 1, 1999 (the "Cut-off Date"), among the Company, as
depositor, Midland Loan Services Inc., as master servicer (in such capacity, the
"Master Servicer") and as special servicer (in such capacity, the "Special
Servicer"), and Norwest Bank Minnesota, National Association, as trustee (the
"Trustee"). The Certificates will evidence the entire beneficial ownership of a
trust fund (the "Trust Fund") to be established by the Company pursuant to the
Pooling and Servicing Agreement. The Trust Fund will consist primarily of a pool
(the "Mortgage Pool") of monthly pay, commercial and multifamily mortgage loans
(the "Mortgage Loans") transferred by the Company to the Trust Fund and listed
in an attachment to the Pooling and Servicing Agreement. Multiple real estate
mortgage investment
conduit ("REMIC") elections are to be made with respect to the Trust Fund with
the resulting REMICs being referred to as "REMIC I", "REMIC II" and "REMIC III",
respectively.
The Private Certificates will be sold by the Company to DLJSC
pursuant to a certificate purchase agreement of even date herewith (the
"Certificate Purchase Agreement").
The Mortgage Loans will be acquired by the Company as follows:
(1) Certain of the Mortgage Loans (the "Column Loans") will be
acquired by the Company from Column Financial, Inc. ("Column"), pursuant
to a mortgage loan purchase agreement dated November 22, 1999 (the "Column
Loan Purchase Agreement"), among the Company, Column and DLJ Mortgage
Capital, Inc.
(2) Certain of the Mortgage Loans (the "Midland Loans") will be
acquired by the Company from Midland Loan Services, Inc. ("MLS"), pursuant
to a mortgage loan purchase agreement dated November 22, 1999 (the "MLS
Loan Purchase Agreement"), between the Company and MLS.
(3) On December 2, 1999, Column will acquire the certificates
representing all of the ownership interests in the Midland Commercial
Mortgage Owner Trust II (the "Owner Trust") from PNC Bank, National
Association ("PNC") and Anthracite Capital, Inc. ("Anthracite"), pursuant
to an Owner Trust Certificate Purchase Agreement dated as of November 22,
1999 among Column, PNC, Anthracite and MLS (the "Owner Trust Certificate
Purchase Agreement"). Column will subsequently exercise its right as owner
of a majority of the Owner Trust certificates to purchase all of the
mortgage loans owned by the Owner Trust (the "Owner Trust Loans"). Under
the Owner Trust Certificate Purchase Agreement, MLS made the
representations and warranties regarding the Owner Trust Loans and has the
obligation to effect a cure with respect to, or repurchase or replace an
Owner Trust Loan in the event of, a material breach of a representation or
warranty. Seventy-four of the Owner Trust Loans will be acquired by the
Company from Column, pursuant to a separate mortgage loan purchase
agreement, dated November 22, 1999 (the "Owner Trust Loan Purchase
Agreement"), between the Company and Column.
Column and MLS collectively constitute the "Mortgage Loan Sellers".
Because MLS (and not Column) is responsible to the Trust Fund in respect of the
representations and warranties that relate to the Owner Trust Loans, MLS is
referred to as the Mortgage Loan Seller for those Mortgage Loans. The Column
Loan Purchase Agreement, the MLS Loan Purchase Agreement and the Owner Trust
Loan Purchase Agreement collectively constitute the "Mortgage Loan Purchase
Agreements".
The Offered Certificates and the Mortgage Loans are described more
fully in the Basic Prospectus and the Prospectus Supplement (each of which terms
is defined below) which the Company is furnishing to the Underwriters.
Capitalized terms used but not otherwise defined herein will have the respective
meanings assigned thereto in the Prospectus Supplement.
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1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-60749) on
Form S-3, pursuant to which the offer and sale of the Offered Certificates
will and can be registered under the Securities Act of 1933, as amended
(the "Act"). Such registration statement has become effective. No stop
order suspending the effectiveness of such registration statement has been
issued or is in effect, and no proceedings for such purpose are pending
or, to the Company's knowledge, threatened by the Commission. 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 the Underwriters of all further
information (financial and other) with respect to the Offered Certificates
set forth therein. Such registration statement, including the exhibits
thereto, as amended at the date hereof, is hereinafter called the
"Registration Statement"; such prospectus, in the form in which it will be
filed with the Commission pursuant to Rule 424 under the Act, is
hereinafter called the "Basic Prospectus"; such supplement to the Basic
Prospectus, in the form in which it will be filed with the Commission
pursuant to Rule 424 under the Act, is hereinafter called the "Prospectus
Supplement"; and the Basic Prospectus and the Prospectus Supplement
together are hereinafter called the "Prospectus". Any preliminary form of
the Prospectus Supplement which has heretofore been filed pursuant to Rule
402(a) or Rule 424 under the Act is hereinafter called a "Preliminary
Prospectus Supplement"; and any such Preliminary Prospectus Supplement and
the form of prospectus that accompanied it are hereinafter together called
a "Preliminary Prospectus". References herein to the Prospectus or
Prospectus Supplement shall exclude information incorporated therein by
reference pursuant to a filing made in accordance with Section 9 hereof,
but shall include any ABS Term Sheet (as defined in Section 9) actually
included therein other than by incorporation by reference (and regardless
of whether such ABS Term Sheet is also incorporated therein by reference).
The Company, as depositor with respect to the Trust Fund, will file with
the Commission within 15 days of the issuance of the Offered Certificates
a report on Form 8-K setting forth specific information concerning the
Offered Certificates.
(ii) As of the date hereof, when the Registration Statement became
effective, when the Prospectus Supplement is first filed pursuant to Rule
424 under the Act, when, prior to the Closing Date (as defined in Section
3), any other amendment to the Registration Statement becomes effective,
when, prior to the Closing Date, any supplement to the Prospectus
Supplement is filed with the Commission, and at the Closing Date, (A) 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
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applicable requirements of the Act and the rules thereunder, (B) 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 (C) the
Prospectus, as amended or supplemented as of any such time, did not and
will not contain an untrue statement of a material fact and did not and
will not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, that the Company makes no
representations or warranties as to (X) 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 any
Underwriter, directly for use therein, or (Y) the information contained in
or omitted from any Computational Materials (as defined in Section 9
hereof) or ABS Term Sheets (also as defined in Section 9), or any
amendment thereof or supplement thereto, incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus (or
any amendment thereof or supplement thereto) by reason of a filing made in
accordance with Section 9.
(iii) The Company is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Missouri, with full
power and authority (corporate and other) to own its properties and
conduct its business, as described in the Prospectus, and to enter into
and perform its obligations under this Agreement, the Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement. The Company
is conducting its business so as to comply with all applicable statutes,
ordinances, rules and regulations of the jurisdictions in which it is
conducting business, except where such non-compliance would not materially
and adversely affect the business, operations, financial condition,
properties or assets of the Company.
(iv) The Commission has not made any request for any further
amendment of the Registration Statement or the Prospectus or for any
additional information, regarding the Offered Certificates, and the
Company has not receive 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.
(v) The Company has entered into the Mortgage Loan Purchase
Agreements and, at or prior to the Closing Date, the Company will have
entered into the Pooling and Servicing Agreement; this Agreement and the
Mortgage Loan Purchase Agreements have been duly authorized, executed and
delivered by the Company, and the Pooling and Servicing Agreement, when
delivered by the Company, will have been duly authorized, executed and
delivered by the Company; and this Agreement constitutes, the Mortgage
Loan Purchase Agreements constitute and the Pooling and Servicing
Agreement, when delivered by the Company, will constitute, valid and
binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may
be limited by (A) bankruptcy, insolvency, liquidation, moratorium,
receivership, reorganization or similar laws affecting 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
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policy considerations limit the enforceability of any provisions of
this Agreement, any Mortgage Loan Purchase Agreement or the Pooling and
Servicing Agreement which purport or are construed to provide
indemnification from securities law liabilities.
(vi) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus. The issuance and sale of the Certificates
have been duly and validly authorized by the Company, and the
Certificates, when duly and validly executed, authenticated and delivered
by the Trustee in accordance with the Pooling and Servicing Agreement and
paid for in accordance with this Agreement and the Certificate Purchase
Agreement, will be entitled to the benefits of the Pooling and Servicing
Agreement.
(vii) Neither the sale of the Offered Certificates to the
Underwriters pursuant hereto, nor the consummation of any other of the
transactions contemplated in, nor the fulfillment of any of the terms of
this Agreement, any Mortgage Loan Purchase Agreement or the Pooling and
Servicing 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, any Mortgage Loan Purchase
Agreement or the Pooling and Servicing Agreement.
(viii) There are no actions or proceedings against the Company
pending, or, to the knowledge of the Company, threatened, before any
court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, any Mortgage Loan Purchase Agreement, the
Pooling and Servicing Agreement or the Offered Certificates, (B) seeking
to prevent the issuance of the Offered Certificates or the consummation of
any of the transactions contemplated by this Agreement, any Mortgage Loan
Purchase Agreement or the Pooling and Servicing Agreement, (C) which might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this Agreement,
any Mortgage Loan Purchase Agreement, the Pooling and Servicing Agreement
or the Offered Certificates or (D) seeking to affect adversely the federal
income tax attributes of the Offered Certificates described in the
Prospectus.
(ix) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of the Company since
the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement, any Mortgage Loan Purchase Agreement or
the Pooling and Servicing Agreement.
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(x) Except for the Pooling and Servicing Agreement and the Mortgage
Loan Purchase Agreements which will be filed with the Commission within 15
days of the issuance of the Offered Certificates as exhibits to a Current
Report on Form 8-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.
(xi) 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, any Mortgage Loan Purchase Agreement and the Pooling and
Servicing Agreement, except such as have been, or as of the Closing Date
will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer
and sale of the Offered Certificates by the Underwriters and any
recordation of the respective assignments of the Mortgage Loan documents
to the Trustee pursuant to the Pooling and Servicing Agreement, that have
not been completed.
(xii) 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 business, operations, financial condition, properties
or assets of the Company.
(xiii) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution and delivery of this Agreement
and the Pooling and Servicing Agreement or the issuance and sale of the
Offered Certificates (other than such federal, state and local taxes as
may be payable on the income or gain recognized therefrom) have been or
will be paid at or prior to the Closing Date.
(xiv) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Company (A) will convey, or cause to be conveyed,
to the Trustee all of the Company's right, title and interest in and to
the Mortgage Loans 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, and (B) will have the
power and authority to transfer or cause the transfer of the Mortgage
Loans to the Trustee and to sell the Offered Certificates to the
Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired ownership of all
of the Company's right, title and interest in and to the Mortgage Loans,
and upon delivery to the Underwriters of the Offered Certificates pursuant
hereto, each Underwriter will have good title to the Offered Certificates
purchased by such Underwriter, in each case free of any Liens granted by
or imposed upon the Company.
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(xv) The Company is not, and the issuance and sale of the Offered
Certificates in the manner contemplated by the Prospectus will not cause
the Company or the Trust Fund to be, subject to registration or regulation
as an "investment company" under the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(xvi) 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 Offered Certificates
and the sale of the Offered Certificates to the Underwriters pursuant to
this Agreement as a sale of the interest in the Mortgage Loans evidenced
by the Offered Certificates. The consideration received by the Company
upon the sale of the Offered Certificates to the Underwriters will
constitute reasonably equivalent value and fair consideration for the
Offered Certificates. The Company will be solvent at all relevant times
prior to, and will not be rendered insolvent by, the sale of the Offered
Certificates to the Underwriters. The Company is not selling the Offered
Certificates to the Underwriters with any intent to hinder, delay or
defraud any of the creditors of the Company.
(xvii) At the Closing Date, the respective classes of Offered
Certificates shall have been assigned ratings no lower than those set
forth in Schedule II hereto by the nationally recognized statistical
rating organizations identified in Schedule II hereto (the "Rating
Agencies").
(xviii) The Trust Fund will qualify as three separate real estate
mortgage investment conduits (each, a "REMIC") for federal income tax
purposes pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code"); 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, Class C and Class D Certificates
(collectively, the "REMIC III Regular Certificates") will constitute
"regular interests" in REMIC III; and the Class R-I, Class R-II and Class
R-III Certificates will, in the case of each such Class, constitute the
sole class of "residual interests" in the related REMIC.
(b) MLS represents and warrants to, and agrees with, each
Underwriter that:
(i) MLS is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full power and
authority (corporate and other) to own its properties and conduct its
business, as described in the Prospectus, and to enter into and perform
its obligations under this Agreement, the MLS Loan Purchase Agreement, the
Owner Trust Certificate Purchase Agreement and the Pooling and Servicing
Agreement. MLS is conducting its business so as to comply with all
applicable statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business, except where such
non-compliance would not materially and adversely affect the business,
operations, financial condition, properties or assets of MLS.
(ii) MLS has entered into the MLS Loan Purchase Agreement and the
Owner Trust Certificate Purchase Agreement and, at or prior to the Closing
Date, MLS will have entered into the Pooling and Servicing Agreement; this
Agreement, the MLS Loan Purchase Agreement and the Owner Trust Certificate
Purchase Agreement have been duly authorized,
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executed and delivered by MLS, and the Pooling and Servicing Agreement,
when delivered by MLS, will have been duly authorized, executed and
delivered by MLS; and this Agreement, the MLS Loan Purchase Agreement and
the Owner Trust Certificate Purchase Agreement constitute, and the Pooling
and Servicing Agreement, when delivered by MLS, will constitute, valid and
binding agreements of MLS, enforceable against MLS in accordance with
their respective terms, except as such enforceability may be limited by
(A) bankruptcy, insolvency, liquidation, moratorium, receivership,
reorganization or similar laws affecting 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 any provisions of this
Agreement, the MLS Loan Purchase Agreement, the Owner Trust Certificate
Purchase Agreement or the Pooling and Servicing Agreement which purport or
are construed to provide indemnification from securities law liabilities.
(iii) Neither the execution and delivery of this Agreement, the MLS
Loan Purchase Agreement, the Owner Trust Certificate Purchase Agreement or
the Pooling and Servicing Agreement, nor the consummation of any of the
transactions contemplated herein or therein, nor the fulfillment of any of
the terms hereof or thereof, will result in the breach of any term or
provision of the certificate of incorporation or by-laws of MLS 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 MLS or any of its subsidiaries is a party
or by which it is bound, or any statute, order or regulation applicable to
MLS or any of its subsidiaries of any court, regulatory body,
administrative agency or governmental body having jurisdiction over MLS or
any of its subsidiaries. Neither MLS 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 MLS to perform its obligations under this
Agreement, the MLS Loan Purchase Agreement, the Owner Trust Certificate
Purchase Agreement or the Pooling and Servicing Agreement.
(iv) There are no actions or proceedings against MLS pending, or, to
the knowledge of MLS, threatened, before any court, administrative agency
or other tribunal (A) asserting the invalidity of this Agreement, the MLS
Loan Purchase Agreement, the Owner Trust Certificate Purchase Agreement or
the Pooling and Servicing Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement,
the MLS Loan Purchase Agreement, the Owner Trust Certificate Purchase
Agreement or the Pooling and Servicing Agreement, (C) which might
materially and adversely affect the performance by MLS of its obligations
under, or the validity or enforceability of, this Agreement, the MLS Loan
Purchase Agreement, the Owner Trust Certificate Purchase Agreement or the
Pooling and Servicing Agreement or (D) which, singly or in the aggregate,
if the subject of any unfavorable decision, ruling or finding, would
materially and adversely affect the business, operations, financial
condition, properties or assets of MLS.
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(v) There has not been any material adverse change in the business,
operations, financial condition, properties or assets of MLS since the
date of its latest audited financial statements.
(vi) No authorization, approval or consent of any court or
governmental authority or agency is necessary for the execution and
delivery by MLS of, or the performance by MLS under, this Agreement, the
MLS Loan Purchase Agreement, the Owner Trust Certificate Purchase
Agreement or the Pooling and Servicing Agreement, except such as (i) have
been, or as of the Closing Date will have been, obtained or (ii) are not
pre-conditions required with respect to performance by MLS but rather are,
in any such case, a future obligation of MLS under the Pooling and
Servicing Agreement, such as, by way of illustration, but not in
limitation of the generality of the foregoing, the recordation of
assignments of Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that has not yet been completed or obtaining a court
order in connection with a foreclosure.
(vii) MLS 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 MLS 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 business, operations, financial condition, properties or assets
of MLS.
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 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 on behalf of the Company
with DTC. Delivery of the Offered Certificates shall be made to the Underwriters
against payment by the Underwriters of the purchase price thereof to or upon the
order of the Company by wire transfer of immediately available funds or by such
other method as may be acceptable to the Company.
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The Company agrees to have the Offered Certificates available for
inspection and checking by the Underwriters in Kansas City, Missouri, not later
than 1:00 p.m. (Kansas City time) on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that each Underwriter
proposes to offer its allocable share of the Offered Certificates for sale to
the public as set forth in the Prospectus. It is further understood that the
Company in reliance upon Policy Statement 105, has not filed and will not file
an offering statement pursuant to Section 352-e of the General Business Law of
the State of New York with respect to the Offered Certificates. As required by
Policy Statement 105, each Underwriter therefore covenants and agrees with the
Company that sales of the Offered Certificates made by such Underwriter in the
State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
5. Agreements. The Company agrees with each Underwriter that:
(a) The Company will promptly advise the Underwriters (i) when,
during any period that a prospectus relating to the Offered Certificates is
required to be delivered under the Act, any amendment to the Registration
Statement affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration Statement
or the Prospectus or for any additional information relating to the Offered
Certificates, (iii) of 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 and (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will not file any
amendment to the Registration Statement affecting the Offered Certificates or
any supplement to the Prospectus affecting the Offered Certificates unless the
Company has furnished the Underwriters with a copy for their review prior to
filing, and will not file any such proposed amendment or supplement to which the
Underwriters may reasonably object (provided that the foregoing does not apply
to periodic reports filed pursuant to the Exchange Act of 1934, as amended (the
"Exchange Act") and incorporated by reference into the Prospectus). Subject to
the foregoing sentence, the Company will cause the Prospectus Supplement to be
transmitted to the Commission for filing pursuant to Rule 424 under the Act by
means reasonably calculated to result in filing with the Commission pursuant to
said Rule. The Company will use its best efforts to prevent the issuance of any
stop order suspending the effectiveness of the Registration Statement affecting
the Offered Certificates and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (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 3:00 p.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
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Offered Certificates that is delivered by the Underwriters to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule 13a-11 under the Exchange Act on the business
day immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Company by the Underwriters prior to 3:00 p.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 3:00
p.m. (New York City time). In each case, the Company will promptly advise the
Underwriters when such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the foregoing provisions of this Section 5(b), the
Company shall have no obligation to file any materials provided by any
Underwriter pursuant to Section 9 which, in the reasonable determination of the
Company, contain erroneous information or contain 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; provided that, at the request of the related
Underwriter, the Company will file Computational Materials or ABS Term Sheets
that contain a material error or omission if clearly marked "superseded by
materials dated _____________" and accompanied by corrected Computational
Materials or ABS Terms Sheets that are marked, "material previously dated
_____________ as corrected". The Company shall give notice to the Underwriters
of its determination not to file any materials pursuant to the preceding
sentence and agrees to file such materials if the 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 as provided
in Section 9.
(d) The Company will furnish to each Underwriter and counsel for the
Underwriters, without charge, for so long as delivery of a prospectus relating
to the Offered Certificates may be required by the Act, as many copies of the
Prospectus, the Preliminary
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Prospectus, if any, and any amendments and supplements thereto as the respective
Underwriters may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as any
Underwriter 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.
(f) 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".
(g) Whether or not the transactions contemplated in the Pooling and
Servicing Agreement are consummated or this Agreement is terminated, the Company
will pay or cause the payment of all expenses incident to the performance of the
obligations of the Company under this Agreement, including, without limitation,
(i) the fees, disbursements and expenses of the Company's counsel in connection
with the purchase of the Mortgage Loans and the issuance and sale of the Offered
Certificates, (ii) all fees and expenses incurred in connection with the
registration and delivery of the Offered Certificates under the Act, and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any Preliminary Prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (iii) all
costs and expenses related to the transfer and delivery of the Offered
Certificates to the Underwriters, including any transfer or other taxes payable
thereon, (iv) the costs of printing or producing any "blue sky" memorandum in
connection with the offer and sale of the Offered Certificates under state
securities laws and all expenses in connection with the qualification of the
Offered Certificates for the offer and sale under state securities laws as
provided in Section 5(e), including, without limitation, filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the "blue sky" memorandum, (v)
the cost of printing the Offered Certificates, (vi) the costs and charges of any
transfer agent, registrar or depository, (vii) the fees and expenses of the
Rating Agencies incurred in connection with the issuance and sale of the Offered
Certificates and (vii) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section.
The Company shall also be responsible for the payment of all
out-of-pocket costs and expenses incurred by the Underwriters, including,
without limitation, (i) the fees and disbursements of counsel for the
Underwriters and (ii) such additional costs arising out of any Computational
Materials and ABS Term Sheets prepared and/or distributed by the Underwriters,
in connection with the purchase and sale of the Offered Certificates; provided,
however, that if the Underwriters terminate this Agreement other than pursuant
to Section 7 or 10(b) hereof, the Underwriters shall be responsible for their
out-of-pocket costs and expenses.
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(h) So long as any Offered Certificates are outstanding, the Company
will, or will cause the Master Servicer or Special Servicer to, furnish or make
available to each Underwriter a copy of (i) the annual statement of compliance
delivered by each of the Master Servicer and the Special Servicer to the Trustee
under the Pooling and Servicing Agreement, (ii) the annual independent public
accountants' servicing report furnished to the Trustee in respect of each of the
Master Servicer and the Special Servicer pursuant to the Pooling and Servicing
Agreement, (iii) each report of the Company, the Trustee, the Master Servicer or
the Special Servicer regarding the Offered Certificates filed with the
Commission under the Exchange Act or mailed to the holders of the Offered
Certificates and (iv) from time to time, upon request of such Underwriter, such
other information concerning the Offered Certificates which may be furnished by
the Company, the Trustee, the Master Servicer or the Special Servicer without
undue expense and without violation of applicable law or the Pooling and
Servicing Agreement.
(i) The Company shall deliver to each Underwriter a copy of the
Prospectus (exclusive of information incorporated therein and further exclusive
of the exhibits and annexes to the Prospectus Supplement) at or prior to the
printing thereof, marked to show changes from the Preliminary Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Agreement shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company and MLS 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 and MLS made in any
certificates delivered pursuant to the provisions hereof, to the performance in
all material respects by the Company of its obligations hereunder and to the
following additional conditions with respect to the Offered Certificates:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the parties hereto, 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
Missouri, dated not earlier than ten days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his or her 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
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Agreement, a Mortgage Loan Purchase 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, in any
Mortgage Loan Purchase Agreement 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 Missouri. 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 Xxxxxxxx & Xxxxxx
L.L.P., counsel for the Company, a favorable opinion, dated the Closing Date and
reasonably satisfactory in form and substance to counsel for the Underwriters,
to the effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the Act.
(ii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or threatened.
(iii) The Registration Statement, each amendment thereto (if any),
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 and other than
any documents required to be filed as exhibits to a Current Report on Form
8-K within 15 days after the Closing Date.
(v) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Missouri and
has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement.
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(vi) Each of this Agreement, the Mortgage Loan Purchase Agreements
and the Pooling and Servicing Agreement has been duly authorized, executed
and delivered by the Company.
(vii) Each of the Mortgage Loan Purchase Agreements 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 such enforceability may be limited by (A) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the rights of creditors generally, (B) general
principles of equity, regardless of whether considered 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 any provision of any such agreement which
purports or is construed to provide indemnification with respect to
securities law violations.
(viii) The 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 and the
Certificate Purchase Agreement, will be entitled to the benefits of the
Pooling and Servicing Agreement.
(ix) Neither the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement nor the consummation of any of the
other transactions contemplated by, or the fulfillment by the Company of
the terms of, this Agreement, the Mortgage Loan Purchase Agreements and
the Pooling and Servicing Agreement, 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, (A) the certificate of incorporation or
by-laws of the Company, or (B) to the knowledge of such counsel, any
indenture or other agreement or instrument to which the Company is a party
or by which it is bound, or (C) any New York, Missouri or federal statute
or regulation applicable to the Company, or (D) to the knowledge of such
counsel, any order of any New York, Missouri or federal court, regulatory
body, administrative agency or governmental body having jurisdiction over
the Company, except, in the case of any of (B), (C) or (D), for any
conflict, breach, violation or default that, in the judgment of such
counsel, is not reasonably likely to materially and adversely affect the
Company's ability to perform its obligations under this Agreement, any
Mortgage Loan Purchase Agreement or the Pooling and Servicing Agreement.
(x) No consent, approval, authorization or order of any federal,
State of Missouri 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, the Mortgage Loan Purchase
Agreements and the Pooling and Servicing Agreement, except such as may be
required under the securities laws of the State of Missouri, 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, except such as have been
obtained and except for any
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recordation of the respective assignments of the Mortgage Loan documents
to the Trustee pursuant to the Pooling and Servicing Agreement that have
not been completed.
(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.
(xii) The statements set forth in the Prospectus Supplement under
the headings "Description of the Certificates" and "The Pooling and
Servicing Agreement" and in the Basic Prospectus under the headings
"Description of the Certificates" and "Servicing of the Mortgage Loans",
insofar as such statements purport to summarize certain material
provisions of the Offered Certificates and the Pooling and Servicing
Agreement, provide a fair and accurate summary of such provisions.
(xiii) The statements set forth in each of the Basic Prospectus and
the Prospectus Supplement under the headings "ERISA Considerations",
"Material Federal Income Tax Consequences" and "Legal Investment", to the
extent that they purport to describe certain matters of federal law or
legal conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Offered Certificates to all
investors, provide in all material respects 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 REMIC within the meaning of Sections 860A
through 860G of the Internal Revenue Code of 1986 in effect on the date
hereof (the "REMIC Provisions") and the REMIC I Regular Interests (as
defined in the Pooling and Servicing Agreement) will be "regular
interests" and the Class R-I Certificates will evidence the sole class of
"residual interests" in REMIC I (as both terms are defined in the REMIC
Provisions in effect on the Closing Date), (B) REMIC II will qualify as a
REMIC within the meaning of the REMIC Provisions, and the REMIC II Regular
Interests (as defined in the Pooling and Servicing Agreement) will be
"regular interests" and the Class R-II Certificates will evidence the sole
class of "residual interests" in REMIC II, and (C) REMIC III will qualify
as a REMIC within the meaning of the REMIC Provisions, and the REMIC III
Regular Certificates will evidence "regular interests" and the Class R-III
Certificates will evidence the sole class of "residual interests" in REMIC
III.
(xv) The portion of the Trust Fund consisting of the Grantor Trust
(as defined in the Pooling and Servicing Agreement) will 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, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement, (y) may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the parties
thereto (other than the Company) and may otherwise be based on such assumptions
as may
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be reasonably acceptable to counsel for the Underwriters, and (z) may be
qualified as an opinion only on the law of the State of Missouri, the law of the
State of New York and the federal laws of the United States of America.
Based on such counsel's participation in conferences with officers
and other representatives of the Company and of the Master Servicer, the Special
Servicer, the Trustee, the Underwriters, the Mortgage Loan Sellers, and their
respective counsel, at which the contents of the Registration Statement and the
Prospectus were discussed, and relying as to facts necessary to the
determination of materiality to the extent such counsel may do so in the
exercise of its professional responsibility upon the certificates and statements
of officers and other representatives of the Company, the Mortgage Loan Sellers
and others, 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, and (with limited exception) such counsel did not
review any documents relating to the Mortgage Loans other than loan summaries
prepared by MLS and Column, on the basis of the foregoing, such counsel shall
also confirm that nothing has come to the attention of such counsel that would
lead such counsel to believe that the Registration Statement or any amendment
thereof (other than (x) financial statements, schedules and other numerical,
financial and statistical data included therein or omitted therefrom and (y) the
documents incorporated therein, as to which such counsel need express no
opinion), as of its effective date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the Prospectus
(other than (x) financial statements, schedules and other numerical, financial
and statistical data included therein or omitted therefrom and (y) the documents
incorporated therein, as to which such counsel need express no opinion), as of
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.
(f) The Underwriters shall have received from MLS a certificate,
dated the Closing Date and executed by an executive officer of MLS, to the
effect that: (i) the representations and warranties of MLS in this Agreement,
the MLS Loan Purchase Agreement and the Owner Trust Certificate Purchase
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) MLS 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.
(g) The Underwriters shall have received with respect to MLS a good
standing certificate from the Secretary of State of the State of Delaware, dated
not earlier than ten days prior to the Closing Date.
(h) The Underwriters shall have received from the secretary or an
assistant secretary of MLS, in his or her individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of MLS, signed this Agreement, the MLS Loan Purchase
Agreement, the Owner Trust Certificate Purchase Agreement, the Pooling and
Servicing Agreement or any other document or certificate delivered on or before
the Closing Date
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in connection with the transactions contemplated herein, in the MLS Loan
Purchase Agreement, in the Owner Trust Certificate Purchase Agreement 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
MLS) has occurred since the date of the good standing certificate referred to in
paragraph (g) above which has affected the good standing of MLS 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
MLS) of the certificate of incorporation and by-laws of MLS, as in effect on the
Closing Date, and of the resolutions of MLS and any required shareholder consent
relating to the transactions contemplated in this Agreement, the MLS Loan
Purchase Agreement, the Owner Trust Certificate Purchase Agreement and the
Pooling and Servicing Agreement.
(i) The Underwriters shall have received from Xxxxxxxx & Xxxxxx L.L.P.,
counsel for MLS, a favorable opinion, dated the Closing Date and reasonably
satisfactory in form and substance to counsel for the Underwriters, to the
effect that:
(i) MLS 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, the MLS Loan Purchase Agreement, the
Owner Trust Certificate Purchase Agreement and the Pooling and Servicing
Agreement.
(ii) Each of this Agreement, the MLS Loan Purchase Agreement, the
Owner Trust Certificate Purchase Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by MLS.
(iii) Each of the MLS Loan Purchase Agreement, the Owner Trust
Certificate Purchase Agreement and the Pooling and Servicing Agreement
constitutes a valid, legal and binding agreement of MLS, enforceable
against MLS in accordance with its terms, except as such enforceability
may be limited by (A) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the rights of
creditors generally, (B) general principles of equity, regardless of
whether considered in a proceeding in equity or at law, or (C) public
policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any
provision of any such agreement which purports or is construed to provide
indemnification with respect to securities law violations.
(iv) Neither the consummation of any of the transactions
contemplated by, nor the fulfillment by MLS of the terms of, this
Agreement, the MLS Loan Purchase Agreement, the Owner Trust Certificate
Purchase Agreement and the Pooling and Servicing Agreement, 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, (A) the
certificate of incorporation or by-laws of MLS, or (B) to the knowledge of
such counsel, any indenture or other agreement or instrument to which MLS
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is a party or by which it is bound, or (C) any New York or federal statute
or regulation applicable to MLS or the Delaware General Corporation Law,
or (D) to the knowledge of such counsel, any order of any New York,
Delaware or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over MLS except, in the case of any
of (B), (C) or (D), for any conflict, breach, violation or default that,
in the judgment of such counsel, is not reasonably likely to materially
and adversely affect MLS's ability to perform its obligations under this
Agreement, the MLS Loan Purchase Agreement, the Owner Trust Certificate
Purchase Agreement or the Pooling and Servicing Agreement.
(v) No consent, approval, authorization or order of any federal,
State of Delaware or State of New York court, agency or other governmental
body is required for the consummation by MLS of the transactions
contemplated by the terms of this Agreement, the MLS Loan Purchase
Agreement, the Owner Trust Certificate Purchase Agreement and the Pooling
and Servicing Agreement, except such as may be required under the
securities laws of the State of Delaware, 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, except such as have been obtained and except for
any consent, approval, authorization or order that is not a pre-condition
required with respect to performance by MLS but is itself a future
obligation of MLS under the agreements, such as, by way of illustration,
but not in limitation of the generality of the foregoing, the recordation
of assignments of Mortgage Loans to the Trustee pursuant to the Pooling
and Servicing Agreement that has not yet been completed or obtaining a
court order in connection with a foreclosure.
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, the MLS Loan Purchase Agreement, the Owner
Trust Certificate Purchase 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 MLS) and
may otherwise be based on such assumptions as may be reasonably acceptable to
counsel for the Underwriters, and (z) may be qualified as an opinion only on the
General Corporation Law of the State of Delaware, the law of the State of New
York and the federal laws of the United States of America.
(j) The Underwriters shall have received from their counsel an
opinion, dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters.
(k) The Underwriters shall have received, with respect to the
Trustee, a favorable opinion of counsel, dated the Closing Date and satisfactory
to counsel for the Underwriters, addressing the valid existence of the Trustee
under the laws of the jurisdiction of its organization, the due authorization,
execution and delivery of the Pooling and Servicing Agreement by the Trustee
and, subject to the same limitations as set forth in Section 6(e)(vii), the
enforceability of the Pooling and Servicing Agreement against the Trustee. Such
opinion may express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished by officers
and/or authorized representatives of parties to, this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the
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due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto (other than the Trustee) and may be
based upon such other assumptions as may be reasonably acceptable to counsel for
the Underwriters. Such opinion may be qualified as an opinion only on the laws
of the jurisdiction wherein the Trustee is organized, the laws of the State of
New York and the federal laws of the United States of America.
(l) The Underwriters shall have received from Ernst & Young LLP,
certified public accountants, a letter dated November 22, 1999 and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters,
stating in effect that, using the assumptions and methodology described in such
letter, they have compared such numbers and percentages set forth in the
electronic database prepared by MLS with respect to the Midland Loans and the
Owner Trust Loans to the corresponding information in the loan documents
identified in such letter relating to the Midland Loans and the Owner Trust
Loans, respectively, and found each such number and percentage set forth in such
database to be in agreement with the corresponding information in such loan
documents.
(m) The Underwriters shall have received from Xxxxxx Xxxxxxxx LLP,
certified public accountants, a letter dated November 22, 1999 and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters,
stating in effect that, using the assumptions and methodology described in such
letter, they have compared such numbers and percentages set forth in the
electronic database prepared by Column with respect to the Column Loans to the
corresponding information in the loan documents identified in such letter
relating to the Column Loans, and found each such number and percentage set
forth in such database to be in agreement with the corresponding information in
such loan documents.
(n) The Underwriters shall have received from Xxxxxx Xxxxxxxx LLP,
certified public accountants, letters dated the date of the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, stating in effect that, using the assumptions and methodology used
by the Company, all of which shall be described in such letters, they have
(based on the Mortgage Loan databases referred to in paragraphs (l) and (m)
above) recalculated such numbers and percentages set forth in the Preliminary
Prospectus Supplement and the Prospectus Supplement 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 Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and found
each such number and percentage set forth in the Preliminary Prospectus
Supplement and the Prospectus Supplement, respectively, to be in agreement with
the results of such calculations.
(o) The Underwriters shall have received all opinions, certificates
and other documents required under the Mortgage Loan Purchase Agreements 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.
(p) The Underwriters shall have received all opinions rendered to
the rating agency or agencies identified on Schedule II hereto, by counsel to
the Company and the Mortgage
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Loan Sellers, and each such opinion shall be dated the Closing Date and
addressed to the Underwriters.
(q) The Offered Certificates shall have been assigned the ratings
indicated on Schedule II hereto by the Rating Agencies.
(r) The Mortgage Loan Sellers shall have sold the Mortgage Loans to
the Company pursuant to the Mortgage Loan Purchase Agreements.
(s) The Company and the Mortgage Loan Sellers shall have furnished
the Underwriters with such further information, certificates and documents as
the Underwriters may reasonably have requested, and all proceedings in
connection with the transactions contemplated by this Agreement and all
documents incident hereto shall be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their counsel.
(t) Subsequent to the date hereof, there shall not have occurred any
change, or development including a prospective change, in or affecting the
business or properties of the Company or a Mortgage Loan Seller which, in the
judgment of the Underwriters after consultation with the Company, materially
impairs the investment quality of the Offered Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Offered Certificates as contemplated in the Prospectus.
7. Cancellation for Failure to Perform. If any of the conditions
specified in Section 6 shall not have been fulfilled in all material respects
when and as provided by this Agreement, or if any of the opinions and
certificates mentioned in Section 6 or elsewhere in this Agreement shall not be
in all material respects reasonably satisfactory in form and substance to the
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.
8. Indemnification and Contribution.
(a) MLS and the Company agree to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the meaning of
the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which such Underwriter or
any such controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment of or supplement to any such document, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
will reimburse each Underwriter and each such controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending against such loss, claim, damage, liability, cost, expense or
action;
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provided, however, that neither MLS nor the Company shall be liable to any
Underwriter (or any such person controlling such Underwriter) in any such case
to the extent that any such loss, claim, damage, liability, cost or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus Supplement or the Prospectus Supplement (or any amendment
thereof or supplement thereto) as to which such Underwriter has agreed to
indemnify the Company pursuant to Section 8(b); and provided, further, that such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling an Underwriter) from whom
the person asserting any such loss, claim, damage, liability, cost or expense
purchased the Offered Certificates which are the subject thereof if (i) such
Underwriter did not give or send to such person a copy of the Prospectus (or the
Prospectus as most recently amended or supplemented) at or prior to the
confirmation of the sale of such Offered Certificates to such person in any case
where such delivery is required by the Act, (ii) the Company has furnished to
such Underwriter copies of the Prospectus (or the Prospectus as most recently
amended or supplemented) in sufficient quantity at least one business day prior
to such Underwriter's confirmation of the sale of such Offered Certificates to
such person, and (iii) the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as most recently amended or supplemented). This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, against any and all
losses, claims, damages, liabilities, costs and expenses to which the Company or
any such director, officer or controlling person may become subject under the
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities, costs and expenses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto), or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company by such Underwriter
specifically for use in such document. In addition, each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of
its directors, each of its officers who signed the Registration Statement, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, against any and all losses, claims, damages, liabilities, costs
and expenses to which the Company or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities, costs and expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Computational Materials or
ABS Term Sheets (or amendments thereof or supplements thereto) delivered to
prospective investors by such Underwriter, which were also furnished to the
Company by such Underwriter pursuant to or as contemplated by Section 9 and made
a part of, or incorporated by reference in, the Registration
-22-
Statement or in any Preliminary Prospectus Supplement or the Prospectus (or any
amendment thereof or supplement thereto) by reason of a filing made pursuant to
Section 9, or arise out of or are based on the omission or alleged omission to
state in any such document a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
(and when read in conjunction with the Prospectus), not misleading; provided,
however, that no Underwriter shall be liable to the extent that any loss, claim,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission in any
Computational Materials or ABS Term Sheets (or any amendment thereof or
supplement thereto) made in reliance upon and in conformity with (A) the
representations and warranties of any Mortgage Loan Seller set forth in or made
pursuant to the related Mortgage Loan Purchase and Sale Agreement (or, in the
case of MLS and the Owner Trust Loans, in the Owner Trust Certificate Purchase
Agreement) or (B) any other information concerning the nature and
characteristics of the Mortgage Loans, the Mortgaged Properties or the Borrowers
furnished to the Underwriters by the Company or any Mortgage Loan Seller (the
error in any such other information concerning the characteristics of the
Mortgage Loans, the Mortgaged Properties or the Borrowers or the breach in such
representations and warranties that gave rise to such untrue statement or
omission, a "Collateral Error"), except to the extent that the related Mortgage
Loan Seller or the Company notified such Underwriter in writing of such
Collateral Error or provided in written or electronic form information
superseding or correcting such Collateral Error (in any case, a "Corrected
Collateral Error") prior to the time of confirmation of sale to the person that
purchased the Offered Certificates that are the subject of any such loss, claim,
damage, liability, cost or expense, or action in respect thereof, and such
Underwriter failed to deliver to such person corrected Computational Materials
or ABS Term Sheets (or, if the superseding or correcting information was
contained in the Prospectus, failed to deliver to such person the Prospectus as
amended or supplemented) at or prior to confirmation of such sale to such
person. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. For all purposes of this Agreement, the Company
acknowledges that the statements set forth in the second sentence of the last
paragraph of the cover page of, and in the first and second sentences of the
third paragraph, the second sentence of the fifth paragraph and the first
sentence of the eighth paragraph under the heading "Plan of Distribution" in,
the Prospectus Supplement and any Preliminary Prospectus Supplement constitute
the only information furnished in writing by or on behalf of the Underwriters
for inclusion in the documents referred to in the foregoing indemnity (other
than any Computational Materials or ABS Term Sheets (or amendments thereof or
supplements thereto) furnished to the Company by any Underwriter for filing
pursuant to Section 9, any such ABS Term Sheet to be treated separately from any
version thereof actually included in the Prospectus as described in Section 1(a)
hereof), and the Underwriters confirm that such statements are correct. Any
Computational Materials or ABS Term Sheets (or amendments thereof or supplements
thereto) so furnished to the Company by any particular Underwriter shall relate
exclusively to and be, to the extent provided herein, the several responsibility
of such Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under paragraph
(a) or (b) of this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under paragraph (a) or (b) of this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve the indemnifying party from
the liability under such paragraph, except to the extent that the indemnifying
party was prejudiced by such failure, and
-23-
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under paragraph (a) or (b), as applicable, of this Section 8. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party); provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by DLJSC 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 reasonably 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).
An indemnifying party shall not be liable for any settlement of any
proceeding effected without its consent. If any proceeding is settled with such
consent or if there is a final judgment for the plaintiff, however, the
indemnifying party shall indemnify the indemnified party from and against any
loss, claim, damage, liability, cost or expense by reason of such settlement or
judgment. Notwithstanding the foregoing, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel for which the indemnifying party is obligated under this Section 8, (ii)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (iii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under
-24-
this Section 8 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages,
liabilities, costs or expenses referred to in and intended to be covered under
such paragraph (a) or (b), as the case may be, then the indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities, costs or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from the offer and
sale of the Offered Certificates pursuant hereto or (ii) if the allocation
provided by clause (i) above 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 Underwriters on the other in connection with the statements or
omissions which resulted in the such losses, claims, damages, liabilities, costs
or expenses, as well as any other relevant equitable considerations; provided,
however, that in no case shall any Underwriter (except as may be provided in
Section 8(e) or in any agreement among underwriters relating to the offering of
the Offered Certificates) be responsible under this Section 8(d) for any amount
in excess of the underwriting discount applicable to the Offered Certificates
purchased by such Underwriter hereunder. The relative benefits received by the
Company on the one hand, and the Underwriters on the other, in connection with
the offering of the Offered Certificates shall be deemed to be in the same
respective proportions that the total net proceeds from the sale of the Offered
Certificates (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters in
connection with the offering of the Offered Certificates, bear to the aggregate
offering price of the Offered Certificates. The relative fault of the Company on
the one hand and of any Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such Underwriter, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities, costs
or expenses (or actions in respect thereof) referred to above in this Section 8
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim, which expenses the indemnifying party shall pay as and when
incurred, at the request of the indemnified party, to the extent that the
indemnifying party will be ultimately obligated to pay such expenses. If any
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the indemnified party
that received such payment shall promptly refund the amount so paid to the
indemnifying party.
-25-
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8(d), each person who controls an Underwriter within the meaning of the
Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding sentence of this Section 8(d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8(d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any liability it or they may have under this
Section 8(d), except to the extent that it or they were prejudiced by such
failure, and the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any liability it
or they may have otherwise than under this Section 8(d).
(e) The Underwriters further agree as follows:
(i) DLJSC will indemnify and hold harmless each of PNC and
Prudential against any losses, claims, damages, liabilities, costs or
expenses to which either PNC or Prudential, as the case may be, may become
subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities, costs or expenses arise out of or
are based upon any untrue statements or alleged untrue statements or
omissions or alleged omissions made in (i) any ABS Term Sheets and/or
Computational Materials relating to the Offered Certificates (or any
amendments thereof or supplements thereto) developed, mailed or otherwise
transmitted by DLJSC, or (ii) any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendments thereof or supplements thereto)
in reliance upon and in conformity with written information furnished to
the Company by DLJSC for use in such document; and DLJSC will reimburse
PNC and Prudential, as applicable, for any legal or other expenses
reasonably incurred thereby in connection with investigating or defending
any such action or claim as such expenses are incurred.
(ii) PNC will indemnify and hold harmless each of DLJSC and
Prudential against any losses, claims, damages, liabilities, costs or
expenses to which either DLJSC and Prudential, as the case may be, may
become subject, under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, liabilities, costs or expenses arise out of
or are based upon any untrue statements or alleged untrue statements or
omissions or alleged omissions made in (i) any ABS Term Sheets and/or any
Computational Materials (or any amendments thereof or supplements thereto)
developed, mailed or otherwise transmitted by PNC, or (ii) any Preliminary
Prospectus Supplement or the Prospectus Supplement (or any amendment
thereof or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by PNC for use in such
document; and PNC will reimburse DLJSC and Prudential, as applicable, for
any legal or other expenses reasonably
-26-
incurred thereby in connection with investigating or defending any such
action or claim as such expenses are incurred.
(iii) Prudential will indemnify and hold harmless each of DLJSC and
PNC against any losses, claims, damages, liabilities, costs or expenses to
which either DLJSC and PNC, as the case may be, may become subject, under
the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities, costs or expenses arise out of or are based upon any
untrue statements or alleged untrue statements or omissions or alleged
omissions made in (i) any ABS Term Sheets and/or Computational Materials
(or any amendments thereof or supplements thereto) developed, mailed or
otherwise transmitted by Prudential, or (ii) any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment thereof or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by Prudential for use in such
document; and Prudential will reimburse DLJSC and PNC, as applicable, for
any legal or other expenses reasonably incurred thereby in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(iv) Each Underwriter agrees to pay its proportionate share (based
on its underwriting proportion as set forth in this Agreement) of any
losses, claims, damages, liabilities, costs or expenses, joint or several,
under the Act, the Exchange Act or otherwise, paid by any other
Underwriter to any person or entity (other than to the contributing
Underwriter), arising out of or based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus, any Computational
Materials or ABS Term Sheets relating to the Offered Certificates, or any
amendment of or supplement to any such document, or arising out of or
based upon the omission or alleged omission to state in any such document
a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (provided
that the payment contemplated by this clause (iv) shall not cover any
losses, claims, damages, liabilities, costs or expenses referred to in and
intended to be covered by clause (i), (ii) or (iii) of this Section 8(e));
and each Underwriter will pay such proportionate share of any legal or
other expenses reasonably incurred by another Underwriter in connection
with investigating or defending any such loss, claim, damage, liability,
cost or expense (or any action in respect thereof). Notwithstanding the
foregoing, this clause (iv) is not intended to cover any losses, claims,
damages, liabilities, costs or expenses referred to in the preceding
sentence to the extent that they have otherwise been covered by any
indemnification by or contribution from the Company or a Mortgage Loan
Seller.
(v) The provisions of Section 8(c) shall apply as between the
Underwriters with respect to indemnities and payments under this Section
8(e), except a contributing Underwriter under clause (iv) of this Section
8(e) cannot assume the defense of any action.
(vi) If the indemnities or payments provided in clauses (i), (ii),
(iii) or (iv) of this Section 8(e), as the case may be, are unavailable to
or, except in the case of clause (iv) of this Section 8(e), insufficient
to hold harmless an indemnified party under such clause in respect of any
losses, claims, damages, liabilities, costs or expenses (or actions in
respect thereof)
-27-
referred to therein and intended to be covered thereby, then the
indemnifying or contributing party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect both the relative benefits
received by such indemnified party on the one hand and the indemnifying or
contributing party on the other, in each case as Underwriter, from the
offering of the Offered Certificates, and the relative fault of such
indemnified party on the one hand and the indemnifying or contributing
party on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities, costs or expenses
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by an indemnified party on
the one hand and indemnifying or contributing party on the other shall be
deemed to be in the same proportion to the amount of Offered Certificates
underwritten by each such party. The relative fault of an indemnified
party or beneficiary on the one hand and the indemnifying or contributing
party on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement or omission or
alleged omission relates to information supplied by such indemnified party
on the one hand or the indemnifying or contributing party on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof)
referred to above in this clause (vi) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this clause (vi), neither the
indemnified party nor the indemnifying or contributing party shall 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 sold, exceeds the amount of any damages
which such party has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged
omission. 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.
(vii) The obligations of DLJSC under clauses (i), (iv) and (vi)
above shall be in addition to any liability which DLJSC may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls PNC or Prudential, as applicable, within the meaning of
the Act or the Exchange Act; the obligations of PNC under clauses (ii),
(iv) and (vi) above shall be in addition to any liability which PNC may
otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls DLJSC or Prudential, as applicable,
within the meaning of the Act or the Exchange Act; and the obligations of
Prudential under clauses (iii), (iv) and (vi) above shall be in addition
to any liability which Prudential may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
DLJSC or PNC, as applicable, within the meaning of the Act or the Exchange
Act.
9. Computational Materials and ABS Term Sheets. (a) Not later than
3:00 p.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
-28-
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/PSA Letters") or (ii) "ABS
Term Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter" and, together with the Xxxxxx/PSA
Letters, the "No-Action Letters"), if the filing of such materials with the
Commission is a condition of the relief granted in such letters and, in the case
of any such materials that constitute "Collateral Term Sheets" within the
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 3:00
p.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 and any Computational
Materials and ABS Term Sheets with respect to the Offered Certificates
which are not required to be filed with the Commission in accordance with
the No-Action Letters, and all Computational Materials and ABS Term Sheets
provided by such Underwriter to potential investors in the Offered
Certificates comply with the requirements of the No-Action Letters;
(iii) such Underwriter did not furnish to any prospective investor
any Computational Materials and/or ABS Term Sheets with respect to the
Offered Certificates that such Underwriter actually knew at the time of
delivery to include any untrue statement of a material fact or, when read
in conjunction with the Prospectus, to 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;
-29-
(iv) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by information 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
(v) 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.
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Underwriters or counsel for the Underwriters to amend or
supplement the Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or ABS Term Sheets provided by any
Underwriter pursuant to or as contemplated by this Section 9 or the omission to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made (and when read in
conjunction with the Prospectus), not misleading, or if it shall be necessary to
amend or supplement any Current Report to comply with the Act or the Exchange
Act or the rules thereunder, the Underwriters, at their expense (or, if such
amendment or supplement is necessary in order for any Current Report to comply
with the Act or the Exchange Act or the rules thereunder, at the expense of the
Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or supplemented.
(d) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Company or its counsel to amend or supplement the Prospectus
as a result of an untrue statement of a material fact contained in any
Computational Materials or ABS Term Sheets provided by any Underwriter pursuant
to or as contemplated by this Section 9 or the omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they made (and when read in conjunction with the
Prospectus), not misleading, or if it shall be necessary to amend or supplement
any Current Report to comply with the Act or the Exchange Act or the rules
thereunder, the Company promptly will notify each Underwriter of the necessity
of such amendment or supplement, and the Underwriters, at their expense (or, if
such amendment or supplement is necessary in order for any Current Report to
comply with the Act or the Exchange Act or the rules thereunder, at the expense
of the Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or supplemented.
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10. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the amount
of the Offered Certificates agreed by such Underwriter to be purchased under
this Agreement, upon tender of such Offered Certificates in accordance with the
terms hereof, and the amount of the Offered Certificates not purchased does not
aggregate more than 10% of the total amount of the Offered Certificates set
forth in Schedule I hereof (based on aggregate purchase price), the remaining
Underwriters shall be obligated to take up and pay for the Offered Certificates
that the withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the amount
of the Offered Certificates agreed by such Underwriter to be purchased under
this Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender
of such Offered Certificates in accordance with the terms hereof, and the amount
of the Offered Certificates not purchased aggregates more than 10% of the total
amount of the Offered Certificates set forth in Schedule I hereto (based on
aggregate price), and arrangements satisfactory to the remaining Underwriter(s)
and the Company for the purchase of such Certificates by other persons are not
made within 36 hours thereafter, this Agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g) and Section 8 hereof)
nor shall any Underwriter (other than a Defaulting Underwriter) be under any
liability to the Company (except to the extent provided in Sections 8 and 9
hereof). Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Company or to the other Underwriters by
reason of its failure to take up and pay for Offered Certificates as agreed by
such Defaulting Underwriter.
11. Termination Upon the Occurrence of Certain Events. Any
Underwriter may terminate its obligations under this Agreement in the absolute
discretion of such Underwriter, by notice given to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company, any Mortgage Loan
Seller or any of their respective affiliates shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or State of New York authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, and (b) such event, singly or together with any other of the
events specified in clauses (a)(i) through (iv) above, makes it, in the judgment
of such Underwriter, impracticable to market the Offered Certificates on the
terms and in the manner contemplated in the Prospectus.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and representatives, MLS or its officers and
representatives 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
-31-
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Offered Certificates. The provisions of Sections 5(g), 8 and 9
hereof shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any Underwriter, will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to it
at its address set forth on Schedule I hereto (or, at such other address as may
be furnished by such Underwriter to the Company in accordance with this Section
13); or, if sent to the Company, will be mailed, delivered or either telegraphed
or transmitted by telecopier and confirmed to it at PNC Mortgage Acceptance
Corp., 000 X. 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Chief
Executive Officer, Telecopy No.: (000) 000-0000 (or at such other address as may
be furnished by the Company to each Underwriter in accordance with this Section
13); or, if sent to MLS, will be mailed, delivered or either telegraphed or
transmitted by telecopier and confirmed to it at Midland Loan Services, Inc.,
000 X. 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Chief
Executive Officer, Telecopy No.: 000-000-0000 (or at such other address as may
be furnished by MLS 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, heirs and legal representatives, and no other person will have
any right or obligation hereunder.
15. Miscellaneous. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York, without regard
to conflicts of law principles. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall together constitute but one and the same instrument.
Neither this Agreement nor any term hereof may be changed, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such change, waiver, discharge or termination is sought.
[SIGNATURE PAGE FOLLOWS]
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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, MLS and the Underwriters.
Very truly yours,
PNC MORTGAGE ACCEPTANCE CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
__________________________________________
Name: Xxxxxxx x. Xxxxxxxx, Xx.
Title: Chief Executive Officer
MIDLAND LOAN SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
__________________________________________
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
Accepted at New York, New York,
as of the date first written above.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ X. Xxxxx Xxxxxxx
______________________________
Name: X. Xxxxx Xxxxxxx
Title: Senior Vice President
Accepted at New York, New York,
as of the date first written above.
PNC CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
_____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Accepted at New York, New York,
as of the date first written above.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxx Xxxxxx
_____________________________
Name: Xxxx Xxxxxx
Title: Managing Director
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Certificates to be Purchased
Underwriters (and addresses) Class (Express as a Percentage
of the Total Principal or
Notional Amount of that Class)
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Class S 100.0%
Securities Corporation Class A-1A 75.6%
277 Park Avenue Class A-1B 74.6%
New York, New York 10172 Class A-2 100.0%
Attention: X. Xxxxx XxXxxxx Class A-3 100.0%
Class A-4 100.0%
Class B-1 100.0%
Class B-2 100.0%
PNC Capital Markets, Inc. Class S 0.0%
One PNC Plaza, 26th Floor Class A-1A 12.2%
249 Fifth Avenue Class A-1B 12.7%
Pittsburgh, Pennsylvania 15222 Class A-2 0.0%
Class A-3 0.0%
Class A-4 0.0%
Class B-1 0.0%
Class B-2 0.0%
Prudential Securities Class S 0.0%
Incorporated Class A-1A 12.2%
One New York Plaza, 18th Floor Class A-1B 12.7%
New York, New York 10292 Class A-2 0.0%
Class A-3 0.0%
Class A-4 0.0%
Class B-1 0.0%
Class B-2 0.0%
__________________________
(1) Notional Amount
SCHEDULE II
Registration Statement No. 333-60749
Basic Prospectus dated November 22, 1999
Prospectus Supplement dated November 22, 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 1999-CM1
Cut-off Date: December 1, 1999
Closing: 10:00 a.m. on December 2, 1999
at the offices of Xxxxxxxx & Xxxxxx L.L.P.,
0000 Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Schedule II (continued)
Initial
Aggregate Certificate
Class Designation Principal Balance Initial Purchase Price(2) Rating (3)
or Notional Pass-Through Rate
Amount of Class(1)
----------------------
Class S $760,414,266(4) 0.8340% AAA-/AAA
Class A-1A $123,351,000 7.1100% AAAA/AAAA
Class A-1B $433,652,000 7.3300% AAA/AAA
Class A-2 $39,922,000 7.5100% AA/AA
Class A-3 $34,218,000 7.6600% A/A
Class A-4 $13,308,000 7.8500% A-/A-
Class B-1 $24,713,000 8.1610% BBB/BBB
Class B-2 $9,505,000 8.1610% BBB-/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 Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and Fitch IBCA, Inc., respectively.
(4) Aggregate Notional Amount.
