DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-CF2
UNDERWRITING AGREEMENT
As of November 20, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
sell to the underwriters named in Schedule I hereto (the "Underwriters";
provided, however, that if you are the only underwriter named in Schedule I,
then the terms "Underwriter" and "Underwriters" shall refer solely to you)
those classes (each, a "Class") of its Commercial Mortgage Pass-Through
Certificates, Series 1998-CF2, specified in Schedule II hereto (the "Offered
Certificates"). The Offered Certificates will be issued pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement") to be dated as
of December 1, 1998 (the "Cut-off Date"), among the Company, as depositor,
Banc One Mortgage Capital Markets, LLC, as master servicer (in such capacity
the "Master Servicer"), and special servicer (in such capacity the "Special
Servicer"), and Norwest Bank Minnesota, National Association, as trustee (in
such capacity, the "Trustee") and as REMIC administrator (in such capacity,
the "REMIC Administrator"). The Offered Certificates will evidence undivided
interests in a trust fund (the "Trust Fund") to be established by the Company
pursuant to the Pooling and Servicing Agreement. The Trust Fund will consist
primarily of a pool (the "Mortgage Pool") of conventional, monthly pay,
commercial and multifamily mortgage loans (the "Mortgage Loans") transferred
by the Company to the Trust Fund and listed in an attachment to the Pooling
and Servicing Agreement. Three real estate mortgage investment conduit
("REMIC") elections are to be made with respect to the Trust Fund with the
resulting REMICs being referred to as "REMIC I", "REMIC II" and "REMIC III",
respectively. The Class B-3, Class B-4, Class B-5, Class B-6, Class C, Class
D, Class R-I, Class R-II and Class R-III Certificates (collectively with the
Offered Certificates, the "Certificates") are also to be issued pursuant to
the Pooling and Servicing Agreement but do not form a part of this offering.
The Offered Certificates are described more fully in the Basic Prospectus and
the Prospectus Supplement (each of which terms is defined below) which the
Company is furnishing to you.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-59167) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of the Offered Certificates, which registration statement has become
effective and copies of which have heretofore been delivered to you. Such
registration statement meets the requirements set forth in Rule 415(a)(1)
under the Act and complies in all other material respects with such Rule. The
Company proposes to file with the Commission pursuant to Rule 424 under the
Act a supplement, dated the date specified in Schedule II hereto, to the
prospectus, dated the date specified in Schedule II hereto, relating to the
Offered Certificates and the method of distribution thereof and has previously
advised you of all further information (financial and other) with respect to
the Offered Certificates set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date hereof is hereinafter
called the "Registration Statement"; such prospectus, in the form in which it
will be filed with the Commission pursuant to Rule 424 under the Act, is
hereinafter called the "Basic Prospectus"; such supplement to the Basic
Prospectus, in the form in which it will be filed with the Commission pursuant
to Rule 424 of the Act, is hereinafter called the "Prospectus Supplement"; and
the Basic Prospectus and the Prospectus Supplement together are hereinafter
called the "Prospectus". Any preliminary form of the Prospectus Supplement
which has heretofore been filed pursuant to Rule 402(a) or Rule 424 is
hereinafter called a "Preliminary Prospectus Supplement". The Company will
not, without your prior consent, file any other amendment to the Registration
Statement or make any change in the Basic Prospectus or the Prospectus
Supplement until after the end of the period during which a prospectus is
required to be delivered to purchasers of the Offered Certificates under the
Act. The Company, as depositor with respect to the Trust Fund, will file with
the Commission within fifteen days of the issuance of the Offered Certificates
a report on Form 8-K setting forth specific information concerning the Offered
Certificates (the "Form 8-K").
(b) As of the date hereof, when the Registration Statement
became effective, when the Prospectus Supplement is first filed pursuant to
Rule 424 under the Act, when, prior to the Closing Date, any other amendment
to the Registration Statement becomes effective, when any supplement to the
Prospectus Supplement is filed with the Commission, and at the Closing Date,
(i) the Registration Statement, as amended as of any such time, and the
Prospectus, as amended or supplemented as of any such time, complied or will
comply in all material respects with the applicable requirements of the Act
and the rules thereunder, (ii) the Registration Statement, as amended as of
any such time, did not and will not contain any untrue statement of a material
fact and did not and will not omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) the Prospectus, as amended or supplemented as of any such time, did not
and will not contain an untrue statement of a material fact and did not and
will not omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) the information contained in or
omitted from the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance
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upon and in conformity with written information furnished to the Company by
you, or by any Underwriter through you, specifically for use in the
preparation thereof, or (B) the information contained in or omitted from any
Current Report (as defined in Section 5(b) hereof), or any amendment thereof
or supplement thereto, incorporated by reference in the Registration Statement
or the Prospectus (or any amendment thereof or supplement thereto).
(c) The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
full power and authority (corporate and other) to own its properties and
conduct its business, as described in the Prospectus, and to enter into and
perform its obligations under this Agreement and the Pooling and Servicing
Agreement, and is conducting its business so as to comply in all material
respects with all applicable statutes, ordinances, rules and regulations of
the jurisdictions in which it is conducting business.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(e) At or prior to the Closing Date, the Company will have
entered into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and
Servicing Agreement, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company, and this Agreement and the
Pooling and Servicing Agreement will constitute valid and binding agreements
of the Company, enforceable against the Company in accordance with their
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, moratorium, receivership, reorganization or similar
laws affecting the rights of creditors generally, (ii) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(iii) public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability of any
provisions of this Agreement which purport to provide indemnification from
securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus; the Offered Certificates have been duly and
validly authorized by the Company, and will, when duly and validly executed
and authenticated by the Trustee and delivered to and paid for by the
Underwriters in accordance with this Agreement and the Pooling and Servicing
Agreement, be entitled to the benefits of the Pooling and Servicing Agreement.
(g) As of the Closing Date, the representations and
warranties of the Company set forth in Section 2.04 of the Pooling and
Servicing Agreement will be true and correct.
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(h) Neither the issuance and sale of the Offered
Certificates, nor the consummation of any other of the transactions
contemplated herein, nor the fulfillment of any of the terms of the Pooling
and Servicing Agreement or this Agreement, will result in the breach of any
term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it is bound, or any statute, order or regulation
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company or any of its subsidiaries. Neither the Company nor any of its
subsidiaries is a party to, bound by or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation of
any statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects the ability of the Company to perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(i) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement or the Offered Certificates, (ii) seeking to prevent the issuance of
the Offered Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Pooling and Servicing Agreement, (iii)
which might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, this Agreement,
the Pooling and Servicing Agreement or the Offered Certificates or (iv)
seeking to affect adversely the federal income tax attributes of the Offered
Certificates described in the Prospectus.
(j) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of the Company
since the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Company to perform its
obligations under the Pooling and Servicing Agreement.
(k) There are no contracts, indentures or other documents of
a character required by the Act or by the rules and regulations thereunder to
be described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by reference as
exhibits thereto.
(l) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and
the Pooling and Servicing Agreement, except such as have been, or as of the
Closing Date will have been, obtained or such as may otherwise be required
under applicable state securities laws in connection with the purchase and
offer and sale of the Offered Certificates by the Underwriters and any
recordation of the respective assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not been completed.
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(m) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company.
(n) Any taxes, fees and other governmental charges payable
by the Company in connection with the execution and delivery of this Agreement
and the Pooling and Servicing Agreement or the issuance and sale of the
Certificates (other than such federal, state and local taxes as may be payable
on the income or gain recognized therefrom) have been or will be paid at or
prior to the Closing Date.
(o) Immediately prior to the assignment of the Mortgage
Loans to the Trustee, the Company will have good title to, and will be the
sole owner of, each Mortgage Loan, free and clear of any pledge, mortgage,
lien, security interest or other encumbrance.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal or
notional amount of each Class of the Offered Certificates set forth opposite
each such Underwriter's name in Schedule I hereto.
The purchase price for each Class of the Offered
Certificates as a percentage of the aggregate principal (or notional) amount
thereof as of the Closing Date (as defined below) is set forth in Schedule II
hereto. There will be added to the purchase price of the Offered Certificates
interest in respect of each Class of the Offered Certificates at the interest
rate applicable to such Class from the Cut-off Date to but not including the
Closing Date.
3. Delivery and Payment. The closing for the purchase and
sale of the Offered Certificates contemplated hereby (the "Closing"), shall be
made at the date, location and time of delivery set forth in Schedule II
hereto, or such later date as shall be mutually acceptable to the Underwriters
and the Company (such date and time of purchase and sale of the Offered
Certificates being herein called the "Closing Date"). Delivery of the Offered
Certificates will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each class of Offered Certificates will be
represented by one or more definitive global Certificates to be deposited by
or on behalf of the Depositor with DTC. Delivery of the Offered Certificates
shall be made to the several Underwriters against payment by the several
Underwriters of the purchase price thereof to 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, checking and packaging by the Underwriters in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Offered Certificates for sale to the
public as set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will promptly advise the Underwriters (i)
when, during any period that a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission
for any amendment to the Registration Statement or the Prospectus or for any
additional information affecting or in respect of the Offered Certificates,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement affecting the Offered Certificates
or the institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will not file any amendment to the Registration Statement
or supplement to the Prospectus unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object until after the period in which a
prospectus is required to be delivered to purchasers of the Offered
Certificates under the Act. Subject to the foregoing sentence, the Company
will cause the Prospectus Supplement to be transmitted to the Commission for
filing pursuant to Rule 424 under the Act by means reasonably calculated to
result in filing with the Commission pursuant to said Rule. The Company will
use its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to
the Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Exchange Act
on the business day immediately following the later of (i) the day on which
such Computational Materials and Structural Term Sheets are delivered to
counsel for the Company by an Underwriter prior to 10:30 a.m. (New York City
time) and (ii) the date on which this Agreement is executed and delivered. The
Company will cause one Collateral Term Sheet (as defined in Section 9 below)
with respect to the Offered Certificates that is delivered by the Underwriters
to the Company in accordance with the provisions of Section 9 to be filed with
the Commission on a Current Report pursuant to Rule 13a-11 under the Exchange
Act on the business day immediately following the day on which such Collateral
Term Sheet is delivered to counsel for the Company by the Underwriters prior
to 10:30 a.m. (New York City time). In addition, if at any time prior to the
availability of the Prospectus Supplement, the Underwriters have delivered to
any prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of the Underwriters and the
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Company, a material change in the characteristics of the Mortgage Loans from
those on which a Collateral Term Sheet with respect to the Offered
Certificates previously filed with the Commission was based, the Company will
cause any such Collateral Term Sheet that is delivered by the Underwriters to
the Company in accordance with the provisions of Section 9 to be filed with
the Commission on a Current Report on the business day immediately following
the day on which such Collateral Term Sheet is delivered to counsel for the
Company by the Underwriters prior to 10:30 a.m. (New York City time). In each
case, the Company will promptly advise the Underwriters when such Current
Report has been so filed. Each such Current Report shall be incorporated by
reference in the Prospectus and the Registration Statement. Notwithstanding
the foregoing provisions of this Section 5(b), the Company shall have no
obligation to file any materials provided by the Underwriters pursuant to
Section 9 which, in the reasonable determination of the Company, are not
required to be filed pursuant to the ▇▇▇▇▇▇ Letters or the PSA Letter (each as
defined in Section 9 below), or contain erroneous information or contain any
untrue statement of a material fact or, when read in conjunction with the
Prospectus and Prospectus Supplement, omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any Computational Materials or ABS Term Sheets (as defined in Section 9 below)
provided by the Underwriters to the Company pursuant to Section 9 hereof. The
Company shall give notice to the 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 any amendments or supplements of such
Computational Materials or ABS Term Sheets that are furnished to the Company
pursuant to Section 9 hereof which the Company determines to file in
accordance therewith.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as delivery
by an Underwriter or dealer of a prospectus relating to the Offered
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Certificates may be required by the Act, as many copies of the Basic
Prospectus, the Preliminary Prospectus Supplement, if any, and the Prospectus
Supplement and any amendments and supplements thereto as the Underwriters may
reasonably request.
(e) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will deliver or cause to be delivered to
the Underwriters the annual statements as to compliance and the annual
statements of a firm of independent public accountants, furnished to the
Trustee by the Master Servicer and the Special Servicer pursuant to Sections
3.13 and 3.14 of the Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action that
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(g) The Company will pay all costs and expenses in
connection with the transactions contemplated hereby, including, but not
limited to, the fees and disbursements of its counsel; the costs and expenses
of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Offered Certificates; accounting fees and
disbursements; the costs and expenses in connection with the qualification or
exemption of the Offered Certificates under state securities or blue sky laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any Blue Sky
Survey and in connection with any determination of the eligibility of the
Offered Certificates for investment by institutional investors and the
preparation of any Legal Investment Survey; the expenses of printing any such
Blue Sky Survey and Legal Investment Survey; the costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits thereto), the Basic Prospectus, the Preliminary
Prospectus Supplement, if any, and the Prospectus Supplement, the preparation
and printing of this Agreement, the furnishing to the Underwriters of such
copies of each Preliminary Prospectus Supplement, if any, and Prospectus
Supplement as the Underwriters may reasonably request and the fees of rating
agencies. Except as provided in Section 7 hereof, the Underwriters shall be
responsible for paying all costs and expenses incurred by them in connection
with their purchase and sale of the Offered Certificates, including the fees
of counsel to any Underwriter.
6. Conditions to the Obligations to the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as
provided in this Agreement shall be subject to the accuracy in all material
respects of the representations and warranties on the part of the Company
contained herein as of the date hereof and as of the Closing Date, to the
accuracy in all material respects of the statements of the Company made in any
certificates pursuant to the provisions hereof,
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to the performance in all material respects by the Company of its obligations
hereunder and to the following additional conditions with respect to the
Offered Certificates:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; and the Prospectus
Supplement shall have been filed with the Commission within the time period
prescribed by the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of
the Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date;
and (ii) the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the
Company a good standing certificate from the Secretary of State of the State
of Delaware, dated not earlier than 30 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary
or an assistant secretary of the Company, in his individual capacity, a
certificate, dated the Closing Date, to the effect that: (i) each individual
who, as an officer or representative of the Company, signed this Agreement,
the Pooling and Servicing Agreement or any other document or certificate
delivered on or before the Closing Date in connection with the transactions
contemplated herein or in the Pooling and Servicing Agreement, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Company) has
occurred since the date of the good standing certificate referred to in
paragraph (c) above which has affected the good standing of the Company under
the laws of the State of Delaware. Such certificate shall be accompanied by
true and complete copies (certified as such by the Secretary or an assistant
secretary of the Company) of the certificate of incorporation and by-laws of
the Company, as in effect on the Closing Date, and of the resolutions of the
Company and any required shareholder consent relating to the transactions
contemplated in this Agreement and the Pooling and Servicing Agreement.
(e) The Underwriters shall have received from Sidley &
Austin, counsel for the Company, a favorable opinion, dated the Closing Date
and reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Registration Statement has become effective
under the 1933 Act.
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(ii) To such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and not withdrawn, and no proceedings for that purpose have
been instituted or threatened and not terminated.
(iii) The Registration Statement, the Basic Prospectus
and the Prospectus Supplement, as of their respective effective or
issue dates (other than the financial statements, schedules and other
financial and statistical information contained therein or omitted
therefrom, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Act and the rules and regulations thereunder.
(iv) To such counsel's knowledge, there are no
material contracts, indentures or other documents relating to the
Offered Certificates of a character required to be described or
referred to in the Registration Statement or the Prospectus
Supplement or to be filed as exhibits to the Registration Statement,
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and validly
existing as a corporation in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority
to enter into and perform its obligations under this Agreement and
the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling and
Servicing Agreement has been duly authorized, executed and delivered
by the Company.
(vii) Each of this Agreement and the Pooling and
Servicing Agreement constitutes a valid, legal and binding agreement
of the Company, enforceable against the Company in accordance with
its terms, except as enforceability may be limited by (A) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of
creditors generally, (B) general principles of equity, regardless of
whether enforcement is sought in a proceeding in equity or at law,
and (C) public policy considerations underlying the securities laws
to the extent that the same limit the enforceability of any
provisions of this Agreement that purport or are construed to provide
indemnification with respect to securities law violations.
(viii) The Offered Certificates, when duly and
validly executed, authenticated and delivered in accordance with the
Pooling and Servicing Agreement and paid for in accordance with this
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
(ix) Neither the sale of the Offered Certificates
to the Underwriters pursuant to this Agreement nor the consummation
of any of the transactions contemplated by or the fulfillment by the
Company of the terms of this Agreement and the Pooling and
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Servicing Agreement, will conflict with or result in a breach or
violation of any term or provision of the certificate of
incorporation or by-laws of the Company, or any federal or State of
New York statute or regulation, or any order known to such counsel of
any federal or State of New York court or agency or other
governmental body having jurisdiction over the Company, except such
counsel need express no opinion as to compliance with the securities
laws of the State of New York and other particular States in
connection with the purchase and the offer and sale of the Offered
Certificates by the Underwriters.
(x) No consent, approval, authorization or order of
any federal or State of New York court, agency or other governmental
body is required for the consummation by the Company of the
transactions contemplated by the terms of this Agreement and the
Pooling and Servicing Agreement, except such as may be required under
the securities laws of the State of New York and other particular
States in connection with the purchase and the offer and sale of the
Offered Certificates by the Underwriters as to which such counsel
need express no opinion, and except such as have been obtained.
(xi) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended. The Trust Fund is not required to be registered under the
Investment Company Act of 1940, as amended.
(xii) The statements set forth in the Prospectus
Supplement under the headings "Description of the Offered
Certificates" and "Servicing of the Mortgage Loans" and in the Basic
Prospectus under the headings "Description of the Certificates" and
"Description of the Pooling Agreements", insofar as such statements
purport to summarize certain material provisions of the Certificates
and the Pooling and Servicing Agreement, provide a fair and accurate
summary of such provisions.
(xiii) The statements set forth in the Prospectus
Supplement under the headings "Certain ERISA Considerations",
"Federal Income Tax Consequences" and "Legal Investment", and in the
Basic Prospectus under the headings "ERISA Considerations", "Federal
Income Tax Consequences" and "Legal Investment", to the extent that
they purport to describe certain matters of federal law or legal
conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Offered Certificates to all
investors, provide a fair and accurate summary of such matters and
conclusions set forth under such headings.
(xiv) As described in the Prospectus Supplement,
and assuming compliance with all the provisions of the Pooling and
Servicing Agreement, (A) REMIC I will qualify as a real estate
mortgage investment conduit (a "REMIC") within the meaning of
Sections 860A through 860G of the Internal Revenue Code of 1986 in
effect on the date hereof (the "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
-11-
Provisions in effect on the Closing Date), (B) REMIC II will qualify
as a REMIC within the meaning of the REMIC Provisions, and the REMIC
II Regular Interests (as defined in the Pooling and Servicing
Agreement) will be "regular interests" and the Class R-II
Certificates will evidence the sole class of "residual interests" in
REMIC II, and (C) REMIC III will qualify as a REMIC within the
meaning of the REMIC Provisions, and the Class S, Class A-1A, Class
A-1B, Class A-2, Class A-3, Class A-4, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5, Class B-6 and Class C Certificates will
evidence "regular interests" and the Class R-III Certificates will
evidence the sole class of "residual interests" in REMIC III.
(xv) Assuming compliance with all the provisions of
the Pooling and Servicing Agreement, for City and State of New York
income and corporation franchise tax purposes: (A) REMIC I, REMIC II
and REMIC III will each be classified as a REMIC, and not as a
corporation, partnership or trust, in conformity with the federal
income tax treatment of REMIC I, REMIC II and REMIC III,
respectively; and (B) the Trust Fund will be exempt from all City and
State of New York taxation imposed on its income, franchise or
capital stock, and its assets will not be included in the calculation
of any City or State of New York franchise tax liability.
(xvi) The portion of the Trust Fund consisting of
the Grantor Trust (as defined in the Prospectus Supplement) 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 and the Pooling and
Servicing Agreement, (y) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the Company, and (z) may be qualified as an opinion only on
the law of the State of New York, the federal law of the United States of
America and the General Corporation Law of the State of Delaware.
Based on such counsel's participation in conferences with
officers and other representatives of the Company and of the Master Servicer
and Special Servicer, the Trustee, the REMIC Administrator, the Underwriters
and their respective counsel, at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel need
not pass upon or assume responsibility for the actual accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus (except as stated in paragraphs (xii) and (xiii) above) and need
not make an independent check or verification thereof for the purpose of
rendering this opinion, on the basis of the foregoing, such counsel shall also
confirm that nothing has come to the attention of such counsel that would lead
such counsel to believe that the Prospectus, 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
-12-
statements therein, in the light of the circumstances under which they were
made, not misleading (other than financial statements, schedules and other
numerical, financial and statistical data included therein or omitted therefrom,
and other than the documents incorporated therein, as to which such counsel need
express no opinion). Insofar as questions of materiality are involved in the
foregoing opinion, such counsel may as to factual matters necessary to the
determination of materiality rely upon certificates and other information
provided by officers and other representatives to the Company and as to
determinations of materiality, may seek in the first instance and rely where
such counsel concludes such reliance is justifiable, on the view of officers and
other representatives of the Company.
(f) [Intentionally omitted.]
(g) The Underwriters shall have received, with respect to
each of the Master Servicer, the Special Servicer, the REMIC Administrator and
the Trustee, a favorable opinion of counsel, dated the Closing Date,
addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and
delivery of the Pooling and Servicing Agreement by such party and, subject to
the same limitations as set forth in Section 6(e)(vii), the enforceability of
the Pooling and Servicing Agreement against such party. Such opinion may
express its reliance as to factual matters on representations and warranties
made by, and on certificates or other documents furnished by officers and/or
authorized representatives of parties to, this Agreement and the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
than the party on behalf of which such opinion is being rendered. Such opinion
may be qualified as an opinion only on the General Corporation Law of the
State of Delaware (if relevant), the laws of the State of New York and of each
other state in which the writer of the opinion is admitted to practice law and
the federal law of the United States.
(h) The Underwriters shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Co., certified public accountants, a letter dated the Closing Date
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 letter, they have
recalculated such numbers and percentages set forth in the Prospectus as the
Underwriters may reasonably request and as are agreed to by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Co., compared the results of their calculations to the corresponding items in
the Prospectus, and found each such number and percentage set forth in the
Prospectus to be in agreement with the results of such calculations.
(i) The Offered Certificates listed on Schedule II hereto
shall have been rated as indicated on such Schedule by the rating agency or
agencies indicated.
(j) All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto and thereto,
shall be satisfactory in form and
-13-
substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such
additional information, certificates and documents as they may reasonably
request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided by this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing, or by telephone or by either telegraph or telecopier confirmed in
writing.
7. Reimbursement of Underwriters' Expenses. If the sale of
any Offered Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof
is not satisfied or because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or comply with any provision
hereof, other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of such Offered Certificates.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within the meaning of
the Act or the Exchange Act of 1934, as amended (the "Exchange Act"), against
claims, damages, or liabilities, joint or several, to which such Underwriter
may become subject, under the Act, the Exchange Act or otherwise, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any part of the Registration
Statement when such part became effective, or in the Registration Statement,
any Preliminary Prospectus Supplement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials or ABS Term Sheets (as
defined in Section 9 below) in respect of which the Company agrees to
indemnify any Underwriter or any such controlling person, as set forth below,
when such are read in conjunction with the Prospectus) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter and
each such controlling person for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such
loss, claim, damage, liability, or action; provided, however, that (i) the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made (A) therein
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter directly or through another Underwriter
specifically for use in the preparation thereof or (B) in any Current
-14-
Report or any amendment or supplement thereof, except to the extent that any
untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) directly from an error (a "Collateral
Error") in the information concerning the characteristics of the Mortgage
Loans furnished by the Company to an Underwriter in writing or by electronic
transmission that was used in the preparation of any Computational Materials
or ABS Term Sheets (or amendments or supplements thereof) furnished to
prospective investors, (ii) such indemnity with respect to any Preliminary
Prospectus Supplement shall not inure to the benefit of any Underwriter (or
any person controlling any Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Offered Certificates which
are the subject thereof if such person did not receive a copy of the
Prospectus (or the Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Certificates to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus Supplement was
corrected in the Prospectus (or the Prospectus as amended or supplemented) and
(iii) such indemnity with respect to any Collateral Error shall not inure to
the benefit of any Underwriter or any person controlling any Underwriter) from
whom the person asserting any loss, claim, damage or liability received any
Computational Materials or ABS Term Sheets that were prepared on the basis of
such Collateral Error, if, prior to the time of confirmation of the sale of
the applicable Offered Certificates to such person, the Company notified such
Underwriter in writing of the Collateral Error or provided in written or
electronic form information superseding or correcting such Collateral Error
(in any such case, a "Corrected Collateral Error"), and such Underwriter
failed to notify such person thereof or to deliver to such person corrected
Computational Materials or ABS Term Sheets (or, if the superseding or
correcting information was contained in the Prospectus, failed to deliver to
such person the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to (i) written information relating to such
Underwriter furnished to the Company by such Underwriter directly or through
another Underwriter specifically for use in the preparation of the documents
referred to in the foregoing indemnity, or (ii) any Computational Materials or
ABS Term Sheets (or amendments or supplements thereof) delivered to
prospective investors by such Underwriter and furnished to the Company by such
Underwriter pursuant to or as contemplated by Section 9 and incorporated by
reference in the Registration Statement, any Preliminary Prospectus Supplement
or the Prospectus or any amendment or supplement thereof (except that no such
indemnity shall be available for any losses, claims, damages or liabilities,
or actions in respect thereof, resulting from any Collateral Error, other than
a Corrected Collateral Error). This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth inthe first two sentences of the
last paragraph of the cover page and in the last paragraph under the heading
"Method of Distribution" in the Prospectus Supplement and any Preliminary
Prospectus Supplement constitute
-15-
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity (other than any Computational Materials or ABS Term Sheets furnished
to the Company by any Underwriter), and you confirm that such statements are
correct. Any Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) furnished to the Company by a particular Underwriter
shall relate exclusively to and be the several responsibility of such
Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) of this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under paragraph (a) or (b) of this Section
8, notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
paragraph (a) or (b), as applicable, of this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which may be counsel
representing the indemnifying party); provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by you in the case of paragraph (a)
of this Section 8, representing the indemnified parties under such paragraph
(a) who are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall be
only in respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a
-16-
result of the losses, claims, damages, or liabilities referred to in paragraph
(a) or (b) above as follows:
(i) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which do not arise out of
or are not based upon any untrue statement or alleged untrue
statement of a material fact or any omission or alleged omission to
state a material fact in any Computational Materials or ABS Term
Sheets (or any amendments or supplements thereof), in such proportion
so that the Underwriters are responsible for that portion represented
by the percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Offered Certificates
specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Offered Certificates) be responsible
under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Offered Certificates
purchased by such Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission to state a material
fact in any Computational Materials or ABS Terms Sheets (or any
amendments or supplements thereof), in such proportion as is
appropriate to reflect the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the
statement or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact in such Computational
Materials or ABS Term Sheets (or any amendments or supplements
thereof) results from information prepared by the Company on the one
hand or the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
Notwithstanding anything to the contrary in this paragraph
(d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of the
Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the preceding
sentence of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not
-17-
relieve the party or parties from whom contribution may be sought from any
liability it or they may have otherwise than under this paragraph (d).
9. Computational Materials and ABS Term Sheets. (a) Not
later than 10:30 a.m., New York City time, on the date hereof, the
Underwriters shall deliver to the Company and its counsel, as provided below,
a complete copy of all materials provided by the Underwriters to prospective
investors in the Offered Certificates which constitute either (i)
"Computational Materials"within the meaning of the no-action letter dated May
20, 1994 issued by the Division of Corporation Finance of the Commission to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated,
and ▇▇▇▇▇▇ 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 "▇▇▇▇▇▇ 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 ▇▇▇▇▇▇
Letters, the "No- Action Letters"), if the filing of such materials with the
Commission is a condition of the relief granted in such letters and, in the
case of any such materials that constitute "Collateral Term Sheets" within the
meaning of the PSA Letter, such Collateral Term Sheets have not previously
been delivered to the Company as contemplated by Section 9(b)(i) below. For
purposes of this Agreement, "Structural Term Sheets" shall have the meaning
set forth in the PSA Letter. Each delivery of Computational Materials and/or
ABS Term Sheets to the Company and its counsel pursuant to this paragraph (a)
shall be made in paper form and, in the case of ABS Term Sheets, electronic
format suitable for filing with the Commission.
(b) Each underwriter represents and warrants to and agrees
with the Company, as of the date hereof and as of the Closing Date, as
applicable, that:
(i) if such Underwriter has provided any Collateral
Term Sheets to potential investors in the Offered Certificates prior
to the date hereof and if the filing of such materials with the
Commission is a condition of the relief granted in the PSA Letter,
then in each such case such Underwriter delivered to the Company and
its counsel, in the manner contemplated by Section 9(a), a copy of
such materials no later than 10:30 a.m., New York City time, on the
first business day following the date on which such materials were
initially provided to a potential investor;
(ii) the Computational Materials (either in
original, aggregated or consolidated form) and ABS Term Sheets
furnished to the Company pursuant to Section 9(a) or as contemplated
in Section 9(b)(i) constitute all of the materials relating to the
Offered Certificates furnished by such Underwriter (whether in
written, electronic or other format) to prospective investors in the
Offered Certificates prior to the date hereof, except for any
preliminary prospectus with respect to the Offered Certificates and
any Computational Materials and ABS Term Sheets with respect to the
Offered Certificates which are not required to be filed with the
Commission in accordance with the No-Action Letters, and all
-18-
Computational Materials and ABS Term Sheets provided by such
Underwriter to potential investors in the Offered Certificates comply
with the requirements of the No-Action Letters;
(iii) on the respective dates any such Computational
Materials and/or ABS Term Sheets with respect to the Offered
Certificates referred to in Section 9(b)(ii) were last furnished
by such Underwriter to each prospective investor, on the date of
delivery thereof to the Company pursuant to or as contemplated by
this Section 9 and on the Closing Date, such Computational Materials
and/or ABS Term Sheets did not and will not include any untrue
statement of a material fact, or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(iv) at the time any Computational Materials or ABS
Term Sheets with respect to the Offered Certificates were furnished
to a prospective investor and on the date hereof, the Underwriters
possessed, and on the date of delivery of such materials to the
Company pursuant to or as contemplated by this Section 9 and on the
Closing Date, the Underwriters will possess, the capability,
knowledge, expertise, resources and systems of internal control
necessary to ensure that such Computational Materials and/or ABS Term
Sheets conform to the representations and warranties of the
Underwriters contained in subparagraphs (ii) and (iii) above of this
paragraph (b);
(v) all Collateral Term Sheets with respect to the
Offered Certificates furnished by such Underwriter to potential
investors contained and will contain a legend, prominently displayed
on the first page thereof, indicating that the information contained
therein will be superseded by the description of the Mortgage Loans
contained in the Prospectus and, except in the case of the initial
Collateral Term Sheet, that such information supersedes the
information in all prior Collateral Term Sheets; and
(vi) on and after the date hereof, such Underwriter
shall not deliver or authorize the delivery of any Computational
Materials, ABS Term Sheets or other materials relating to the Offered
Certificates (whether in written, electronic or other format) to any
potential investor unless such potential investor has received a
Prospectus prior to or at the same time as the delivery of such
Computational Materials, ABS Term Sheets or other materials.
Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials or ABS
Term Sheets with respect to the Offered Certificates included or will include
any untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the
receipt by the Underwriters from the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
-19-
(c) The Underwriters acknowledge and agree that the Company
has not authorized and will not authorize the distribution of any
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates to any prospective investor. The Underwriters agree that they
will not represent to potential investors that any Computational Materials
and/or ABS Term Sheets with respect to the Offered Certificates were prepared
or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, it shall be
necessary in the opinion of the Underwriters or their counsel to amend or
supplement the Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials or ABS Term Sheets provided by
the Underwriters pursuant to or as contemplated by this Section 9 or the
omission to state a material fact required, when considered in conjunction
with the Prospectus, to be stated therein or necessary to make the statements
therein, when read in conjunction with the Prospectus, not misleading, or if
it shall be necessary to amend or supplement any Current Report to comply with
the Act or the rules thereunder, the Underwriters, at their expense (such
expense to be allocated between them based on the relative fault of the
Underwriters) (or, if such amendment or supplement is necessary due to a
Collateral Error (except any Corrected Collateral Error, with respect to
materials prepared after the receipt by the Underwriters from the Company of
notice of such Corrected Collateral Error or materials superseding or
correcting such Corrected Collateral Error), at the expense of the Company),
shall prepare and furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and shall distribute such
amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or supplemented.
Each Underwriter represents and warrants to the Company, as of the date of
delivery of such amendment or supplement to the Company, that such amendment
or supplement will not include any untrue statement of a material fact or,
when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d)) or (ii) such filing is not required under the Act. Each
Underwriter represents and warrants to the Company, as of the date of delivery
of such amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Notwithstanding the foregoing, none of the Underwriters make any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the
-20-
receipt by the Underwriters from the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(e) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act, it shall be
necessary in the opinion of the Company or its counsel to amend or supplement
the Prospectus as a result of an untrue statement of a material fact contained
in any Computational Materials or ABS Term Sheets provided by the Underwriters
pursuant to or as contemplated by this Section 9 or the omission to state
therein a material fact required, when considered in conjunction with the
Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Prospectus, not misleading, or if it shall be
necessary to amend or supplement any Current Report to comply with the Act or
the rules thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters, at their
expense (such expense to be allocated between them based on the relative fault
of the Underwriters) (or, if such amendment or supplement is necessary due to
a Collateral Error (except any Corrected Collateral Error, with respect to
materials prepared after the receipt by the Underwriters from the Company of
notice of such Corrected Collateral Error or materials superseding or
correcting such Corrected Collateral Error), at the expense of the Company),
shall prepare and furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and shall distribute such
amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or supplemented.
Each Underwriter represents and warrants to the Company, as of the date of
delivery of such amendment or supplement to the Company, that such amendment
or supplement will not include any untrue statement of a material fact or,
when read in conjunction with the Prospectus, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. Notwithstanding the foregoing, none of the Underwriters make any
representation or warranty as to whether any such amendment or supplement of
Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriters from the Company
of notice of such Corrected Collateral Error or materials superseding or
correcting such Corrected Collateral Error).
(f) The Underwriters (at their own expense) further agree to
provide to the Company any accountants' letters obtained relating to the
Computational Materials and/or ABS Term Sheets, which accountants' letters
shall be addressed to the Company or shall state that the Company may rely
thereon; provided that the Underwriters shall have no obligation to procure
any such letter.
10. Substitution of Underwriters. (a) If any Underwriter
shall fail to take up and pay for the amount of the Offered Certificates
agreed by such Underwriter to be purchased under this Agreement, upon tender
of such Offered Certificates in accordance with the terms hereof, and the
amount of the Offered Certificates not purchased does not aggregate more than
10% of the total amount of the Offered Certificates set forth in Schedule I
hereof, the remaining Underwriters shall
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be obligated to take up and pay for the Offered Certificates that the
withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the
amount of the Offered Certificates agreed by such Underwriter to be purchased
under this Agreement (such Underwriter being a "Defaulting Underwriter"), upon
tender of such Offered Certificates in accordance with the terms hereof, and
the amount of the Offered Certificates not purchased aggregates more than 10%
of the total amount of the Offered Certificates set forth in Schedule I
hereto, and arrangements satisfactory to the remaining Underwriters and the
Company for the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In the event of
any such termination the Company shall not be under any liability to any
Underwriter (except to the extent provided in Section 5(g) and Section 8
hereof) nor shall any Underwriter (other than an Underwriter who shall have
failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of the Offered Certificates such Underwriter agreed to
purchase hereunder) be under any liability to the Company (except to the
extent provided in Sections 8 and 9 hereof). Nothing herein shall be deemed to
relieve any Defaulting Underwriter from any liability it may have to the
Company or any other Underwriter by reason of its failure to take up and pay
for Offered Certificates as agreed by such Defaulting Underwriter.
11. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters by notice given to
the Company prior to delivery of and payment for all Offered Certificates if
prior to such time (i) trading in securities of the Company or any affiliate
on the New York Stock Exchange shall have been suspended or limited, or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared by either federal or New York State
authorities, or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis, the effect of which on
the financial markets of the United States is such as to make it, in the
reasonable judgment of the Underwriters, impractical to market the Offered
Certificates.
12. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Offered
Certificates. The provisions of Sections 7, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be
mailed, delivered or either telegraphed or transmitted by telecopier and
confirmed to them at the addresses set forth on Schedule I hereto (or, in the
case of any Underwriter, at such other address as may be furnished by such
Underwriter to the Company in accordance with this Section 13); or, if sent to
the Company will be mailed, delivered or either telegraphed or transmitted by
telecopier and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
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New York, New York 10172, Attention: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to Sidley &
Austin, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (or at such other address as may be furnished by the Company to each
Underwriter in accordance with this Section 13).
14. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder.
15. Applicable Law; Counterparts. This Agreement will be
governed by and construed in accordance with the substantive laws of the State
of New York applicable to agreements made and to be performed entirely in said
State. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which
shall together constitute but one and the same instrument.
-23-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By:
-----------------------------------
Name:
Title:
Accepted at New York, New York as of the date first written above.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
-----------------------------
Name:
Title:
SCHEDULE I
Principal or Notional
Amount of Relevant
Underwriter Class of Offered
(and address) Class Certificates to be Purchased
------------- ----- ----------------------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation(1) Class S $1,107,680,439(2)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇-▇▇ $218,044,000
New York, New York 10172 Class A-1B $579,485,000
Attention: N. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Class A-2 $ 55,384,000
Class A-3 $ 60,923,000
Class A-4 $ 13,846,000
Class B-1 $ 41,538,000
Class B-2 $ 16,615,000
-----------------
(1) Only Underwriter
(2) Notional Amount
SCHEDULE II
Registration Statement No. 333-59167
Basic Prospectus dated November 20, 1998
Prospectus Supplement dated November 2, 1998
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series
1998-CF2, Class S,
Class A-1A, Class
A-1B, Class A-2,
Class A-3, Class A-4,
Class B-1 and Class
B-2
Cut-off Date: December 1, 1998
Closing: 10:00 a.m. on December 3, 1998
at the offices of
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Initial
Aggregate Certificate
Principal Balance
or Notional Initial
Class Designation Amount of Class(1) Pass-Through Rate Purchase Price(2) Rating (3)
----------------- --------------- ----------------- ----------------- ----------
Class S $1,107,680,439 0.8514% N/A Aaa/AAA
Class A-1A $218,044,000 5.8800% 100.500000 Aaa/AAA
Class A-1B $579,485,000 6.2400% 100.515625 Aaa/AAA
Class A-2 $ 55,384,000 6.4800% 101.500000 Aa2/AA
Class A-3 $ 60,923,000 6.6700% 101.515625 A2/A
Class A-4 $ 13,846,000 6.9000% 101.531250 A3/A-
Class B-1 $ 41,538,000 7.0663% 99.833333 Baa2/BBB
Class B-2 $ 16,615,000 7.0663% 93.027778 Baa3/BBB-
------------------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount,
as applicable, of the relevant class of Offered Certificates to be
purchased. The purchase price for each class of the Offered
Certificates will include accrued interest at the initial
Pass-Through Rate therefor on the aggregate stated or notional
amount, as applicable, thereof to be purchased from the Cut-off Date
to but not including the Closing Date.
(3) By each of ▇▇▇▇▇'▇ Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
