EXECUTION COPY
DLJ COMMERCIAL MORTGAGE CORP.
Commercial Mortgage Pass-Through Certificates
Series 1999-CG2
UNDERWRITING AGREEMENT
June 11, 1999
Xxxxxxxxx, Xxxxxx &
Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and
Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
sell to you (together, the "Underwriters"), those classes (each, a "Class") of
its Commercial Mortgage Pass-Through Certificates, Series 1999-CG2, 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
June 1, 1999 (the "Cut-off Date"), among the Company, as depositor, GE Capital
Loan Services, Inc., as master servicer (the "Master Servicer"), Banc One
Mortgage Capital Markets, LLC, as special servicer (the "Special Servicer"),
and Norwest Bank Minnesota, National Association, as trustee (in such capacity,
the "Trustee") and as REMIC administrator (in such capacity, the "REMIC
Administrator"). The Certificates will evidence the entire beneficial ownership
of a trust fund (the "Trust Fund") to be established by the Company pursuant to
the Pooling and Servicing Agreement. The Trust Fund will consist primarily of a
pool (the "Mortgage Pool") of conventional, monthly pay, commercial and
multifamily mortgage loans (the "Mortgage Loans") transferred by the Company to
the Trust Fund and listed in an attachment to the Pooling and Servicing
Agreement. Multiple real estate mortgage investment conduit ("REMIC") elections
are to be made with respect to the Trust Fund with the resulting REMICs being
referred to as "REMIC I", "REMIC II", "REMIC III" and the "Loan REMICs",
respectively. The Company acquired certain of the Mortgage Loans from GE
Capital Access, Inc. ("GECA"), certain of the
Mortgage Loans from Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the remaining
Mortgage Loans from Column Financial, Inc. ("Column"; and collectively with
GECA and GSMC, the "Mortgage Loan Sellers"), in each case pursuant to a
Mortgage Loan Purchase and Sale Agreement (each, a "Mortgage Loan Purchase and
Sale Agreement") dated as of the date hereof, between the Company and the
particular Mortgage Loan Seller. The Offered Certificates and the Mortgage
Loans are described more fully in the Basic Prospectus and the Prospectus
Supplement (each of which terms is defined below) which the Company is
furnishing to you. Capitalized terms used but not otherwise defined herein will
have the respective meanings assigned thereto in the Prospectus Supplement.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-59167) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of the offer and sale 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 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, together with the form of prospectus that
accompanied it, are hereinafter 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 fifteen days of the issuance of the Offered
Certificates a report on Form 8-K setting forth specific information concerning
the Offered Certificates.
(b) As of the date hereof, when the Registration Statement
became effective, when the Prospectus Supplement is first filed pursuant to
Rule 424 under the Act, when, prior to the Closing Date (as defined in Section
3), any other amendment to the Registration Statement becomes
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effective, when, prior to the Closing Date, any supplement to the Prospectus
Supplement is filed with the Commission, and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complied or will comply in all
material respects with the applicable requirements of the Act and the rules
thereunder, (ii) the Registration Statement, as amended as of any such time,
did not and will not contain any untrue statement of a material fact and did
not and will not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) the
Prospectus, as amended or supplemented as of any such time, did not and will
not contain an untrue statement of a material fact and did not and will not
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, that the Company makes no representations or warranties
as to (A) the information contained in or omitted from the Registration
Statement or the Prospectus, or any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter directly for use therein, (B) the information
contained in or omitted from the Prospectus, or any amendment thereof or
supplement thereto, in reliance upon and conformity with (1) the Master Tape
(it being acknowledged that the Master Tape was used to prepare the Prospectus
Supplement, including, without limitation, Exhibit A-1 and Exhibit A-2 to the
Prospectus Supplement and the accompanying diskette), (2) the representations
and warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement, or (3) any other information
concerning the characteristics of the Mortgage Loans, the related Borrowers or
the related Mortgaged Properties furnished to the Company or the Underwriters
by any Mortgage Loan Seller, (C) the information regarding the Mortgage Loans,
the related borrowers (the "Borrowers" and the related mortgaged properties
(the "Mortgaged Properties") contained in or omitted from the Prospectus
Supplement, or any amendment thereof or supplement thereto, under the headings
"Summary of the Prospectus Supplement--The Mortgage Loans and the Mortgaged
Properties", "Risk Factors" and "Description of the Mortgage Pool" or on
Exhibit A-1 or Exhibit A-2 thereto or on the accompanying diskette, or (D) the
information contained in or omitted from any Computational Materials (as
defined in Section 9 hereof) or ABS Term Sheets, or any amendment thereof or
supplement thereto, incorporated by reference in the Registration Statement,
any Preliminary Prospectus or the Prospectus (or any amendment thereof or
supplement thereto) by reason of a filing made in accordance with Section 9.
The "Master Tape" consists of the compilation of underlying information and
data regarding the Mortgage Loans covered by the Independent Accountants Report
on Applying Agreed Upon Procedures dated June 3, 1999, as supplemented to the
Closing Date, and rendered by Xxxxxx Xxxxxxxx LLP.
(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.
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(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, regarding the Offered
Certificates (ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
(e) At or prior to the Closing Date, the Company will have
entered into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and
Servicing Agreement, when delivered by the Company, will have been duly
authorized, executed and delivered by the Company; and this Agreement
constitutes, and the Pooling and Servicing Agreement, when delivered by the
Company, will constitute, valid and binding agreements of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, moratorium, receivership, reorganization or similar laws affecting
the rights of creditors generally, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii) public
policy considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of any provisions of this
Agreement or the Pooling and Servicing Agreement which purport to provide
indemnification from securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus; the issuance and sale of the Offered Certificates
have been duly and validly authorized by the Company, and such Certificates
will, when duly and validly executed and authenticated by the Trustee in
accordance with the Pooling and Servicing Agreement, be entitled to the
benefits of the Pooling and Servicing Agreement.
(g) As of the Closing Date, the representations and
warranties of the Company set forth in Section 2.04 of the Pooling and
Servicing Agreement will be true and correct.
(h) Neither the sale of the Offered Certificates to the
Underwriters pursuant hereto, nor the consummation of any other of the
transactions contemplated herein, nor the fulfillment of any of the terms of
the Pooling and Servicing Agreement or this Agreement, will result in the
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any indenture or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it is bound, or any statute, order or regulation
applicable to the Company or any of its subsidiaries of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company or any of its subsidiaries. Neither the Company nor any of its
subsidiaries is a party to, bound by or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it,
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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 Loan documents to the Trustee pursuant
to the Pooling and Servicing Agreement, that have not been completed.
(m) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the business now
operated by it, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such license, certificate,
authority or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company.
(n) Any taxes, fees and other governmental charges payable by
the Company in connection with the execution and delivery of this Agreement and
the Pooling and Servicing Agreement or the issuance and sale of the Offered
Certificates (other than such federal, state and local
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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; provided that this representation and warranty
is made on the basis of the assumption that the Mortgage Loan Sellers delivered
to the Company good title to each Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance.
(p) The transfer of the Mortgage Loans to the Trustee and the
sale of the Certificates by the Company, at the Closing Date, will be treated
by the Company for financial accounting and reporting purposes as a sale of
assets and not as a pledge of assets to secure debt.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal or
notional amount of each Class of the Offered Certificates set forth opposite
each such Underwriter's name in Schedule I hereto.
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 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.
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.
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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. 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 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 affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration
Statement or the Prospectus, or for any additional information, affecting or in
respect of the Offered Certificates, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
affecting the Offered Certificates or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will not file any amendment to the
Registration Statement affecting the Offered Certificates or any supplement to
the Prospectus unless the Company has furnished you with a copy for your review
prior to filing, and will not file any such proposed amendment or supplement to
which you reasonably object, in any event until after the end of the period
during which a prospectus is required to be delivered to purchasers of the
Offered Certificates under the Act. Subject to the foregoing sentence, the
Company will cause the Prospectus Supplement to be transmitted to the
Commission for filing pursuant to Rule 424 under the Act by means reasonably
calculated to result in filing with the Commission pursuant to said Rule. The
Company will use its best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement affecting the
Offered Certificates and, if issued, to obtain as soon as possible the
withdrawal thereof
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to the
Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on the business day
immediately following the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to counsel for the Company
by an Underwriter prior to 10:30 a.m. (New York City time) and (ii) the date on
which this Agreement is executed and delivered. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to the
Offered Certificates that is delivered by the Underwriters to the Company in
accordance with the provisions of Section 9 to be filed with the Commission on
a Current Report pursuant to Rule 13a-11 under the Exchange Act
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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 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
Xxxxxx Letters or the PSA Letter (each as defined in Section 9 below), or
contain erroneous information or contain any untrue statement of a material
fact or, when read in conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being understood,
however, that the Company shall have no obligation to review or pass upon the
accuracy or adequacy of, or to correct, any Computational Materials or ABS
Term Sheets provided by 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.
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(d) The Company will furnish to the Underwriters and
counsel for the Underwriters, without charge, for so long as delivery by an
Underwriter or dealer of a prospectus relating to the Offered Certificates may
be required by the Act, as many copies of the Prospectus, the Preliminary
Prospectus, if any, 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 either
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.
(g) All costs and expenses in connection with the
transactions contemplated hereby will be payable in accordance with the Term
Sheet for the Joint Conduit Securitization dated as of April 26, 1999, among
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJSC"), GSMC and GECA.
(h) The Company shall deliver to the Underwriters a copy or
series of copies of the Prospectus (exclusive of information incorporated
therein and further exclusive of the exhibits and annexes to the Prospectus
Supplement) at or prior to the printing thereof, marked to show changes from
the Preliminary Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the several 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, 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.
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(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 10 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 each
Underwriter, to the effect that:
(i) The Registration Statement has become effective under
the Act.
(ii) To such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued, and
no proceedings for that purpose have been instituted or threatened.
(iii) The Registration Statement, the Basic Prospectus and
the Prospectus Supplement, as of their respective effective or issue
dates (other than the financial statements, schedules and other
financial and statistical information contained therein or omitted
therefrom, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Act and the rules and regulations thereunder.
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(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 the Pooling and Servicing Agreement and this Agreement
constitutes a valid, legal and binding agreement of the Company, enforceable
against the Company in accordance with its terms, 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 such
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 other
transactions contemplated by, or the fulfillment by the Company of the terms
of, this Agreement and the Pooling and Servicing Agreement, will conflict
with, result in a material breach, violation or acceleration of or constitute
a material default under the terms of any indenture or other material
agreement or instrument known to such counsel (based solely on a certification
by the Company) to which the Company is a party or by which it is bound, or
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, 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
-11-
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 Offered
Certificates and the Pooling and Servicing Agreement, are accurate in all
material respects.
(xiii) The statements set forth in the Prospectus Supplement under
the headings "Certain ERISA Considerations", "Federal Income Tax Consequences"
and "Legal Investment", and in the Basic Prospectus under the headings "ERISA
Considerations", "Federal Income Tax Consequences" and "Legal Investment", to
the extent that they purport to describe certain matters of federal law or
legal conclusions with respect thereto, while not discussing all possible
consequences of an investment in the Offered Certificates to all investors,
provide an accurate summary of such matters and conclusions set forth under
such headings.
(xiv) As described in the Prospectus Supplement, and assuming
compliance with all the provisions of the Pooling and Servicing Agreement, (A)
REMIC I will qualify as a REMIC within the meaning of Sections 860A through
860G of the Internal Revenue Code of 1986 in effect on the date hereof (the
"REMIC Provisions") and the REMIC I Regular Interests (as defined in the
Pooling and Servicing Agreement) will be "regular interests" and the Class R-I
Certificates will evidence the sole class of "residual interests" in REMIC I
(as both terms are defined in the REMIC Provisions in effect on the Closing
Date), (B) REMIC II will qualify as a REMIC within the meaning of the REMIC
Provisions, and the REMIC II Regular Interests (as defined in the Pooling and
Servicing Agreement) will be "regular interests" and the Class R-II
Certificates will evidence the sole class of "residual interests" in REMIC II,
and (C) REMIC III will qualify as a REMIC within the meaning of the REMIC
Provisions, and the Class S, Class A- I A, Class A- I B, Class A-2, Class A-3,
Class A-4, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7, Class B-8 and Class C Certificates will evidence "regular
interests" and the Class R-III Certificates will evidence the sole class of
"residual interests" in REMIC III.
-12-
(xv) The portions of the Trust Fund consisting of Grantor
Trust D-1 and Grantor Trust D-2 (each as defined in the Pooling and
Servicing Agreement) will each be classified as a grantor trust under
subpart E, part I of subchapter J of the Internal Revenue Code of
1986.
Such opinion (x) may express its reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement, (y) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the Company and otherwise be based on such assumptions as
may be reasonably acceptable to counsel for each of the Underwriters, 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,
the Special Servicer, the Trustee, the REMIC Administrator, the Underwriters,
the Mortgage Loan Sellers, and their respective counsel, at which the contents
of the Registration Statement and the Prospectus were discussed and, although
such counsel need not pass upon or assume responsibility for the actual
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as stated in paragraphs (xii)
and (xiii) above) and need not make an independent check or verification
thereof, on the basis of the foregoing, such counsel shall also confirm that
nothing has come to the attention of such counsel that would lead such counsel
to believe that the Registration Statement (other than (x) financial
statements, schedules and other numerical, financial and statistical data
included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion), as of its
effective date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of the date of
the Prospectus Supplement and at the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than (x)
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion).
(f) The Underwriters shall have received from counsel to
each Mortgage Loan Seller, a letter, dated the Closing Date, and reasonably
satisfactory in form and substance to counsel for each Underwriter, to the
effect that, based on such counsel's participation in conferences with
officers and other representatives of the Company, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator, the Mortgage Loan
Sellers, the Underwriters and their respective counsel, at which the contents
of the Prospectus Supplement were discussed and, although such counsel need
not pass upon or assume responsibility for the actual accuracy, completeness
or fairness of the statements contained in the Prospectus Supplement and need
not make an independent check
-13-
or verification thereof, nothing has come to the attention of such counsel
that would lead such counsel to believe that the Prospectus Supplement, as of
the date of the Prospectus Supplement and at the Closing Date, insofar as it
relates to the characteristics of the Mortgage Loans sold by such Mortgage
Loan Seller to the Company, the related Mortgaged Properties and/or the
related Borrowers, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (other than financial statements, schedules and other
numerical, financial and statistical data included therein or omitted
therefrom and the documents incorporated therein, as to which such counsel
need express no opinion).
(g) The Underwriters shall have received an opinion of
Xxxxxxxxxx, Xxxxxxxxxx & Xxxx, counsel to Xxxxxxx, Xxxxx & Co. ("Goldman"), in
form and substance satisfactory to the Underwriters.
(h) 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 and
satisfactory to counsel for each Underwriter, addressing the valid existence
of such party under the laws of the jurisdiction of its organization, the due
authorization, execution and delivery of the Pooling and Servicing Agreement
by such party and, subject to the same limitations as set forth in Section
6(e)(vii), the enforceability of the Pooling and Servicing Agreement against
such party. Such opinion may express its reliance as to factual matters on
representations and warranties made by, and on certificates or other documents
furnished by officers and/or authorized representatives of parties to, this
Agreement and the Pooling and Servicing Agreement and on certificates
furnished by public officials. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than the party on behalf of which such opinion is
being rendered and be based upon such other assumptions as may be reasonably
acceptable to counsel for each of the Underwriters. Such opinion may be
qualified as an opinion only on the laws of the jurisdiction wherein the
subject party is organized, the laws of the State of New York and the federal
law of the United States.
(i) 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
each Underwriter, stating in effect that, using the assumptions and
methodology used by the Company, all of which shall be described in such
letters, they have recalculated such numbers and percentages set forth in the
Preliminary Prospectus Supplement and the Prospectus Supplement as the
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.
-14-
(j) The Underwriters shall have received all opinions,
certificates and other documents required under the Mortgage Loan Sale and
Purchase Agreements to be delivered by the 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.
(k) The Underwriters shall have received all opinions
rendered to the Rating Agencies by counsel to the Company and the Mortgage
Loan Sellers, and each such opinion shall be dated the Closing Date and
addressed to the Underwriters.
(l) The Offered Certificates listed on Schedule II hereto
shall have been rated as indicated on such Schedule by the rating agency or
agencies identified on such Schedule and such ratings shall not have been
rescinded.
(m) All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto and thereto,
shall be reasonably satisfactory in form and substance to the Underwriters and
counsel for each Underwriter.
(n) Subsequent to the date hereof, there shall not have
occurred any change, or development including a prospective change, in or
affecting the business or properties of the Company which, in the judgment of
the 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 each Underwriter, 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) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the meaning
of the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which such Underwriter
or any such controlling person may become subject, under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages, liabilities, costs
and expenses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement
-15-
of a material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment of or supplement to any such
document, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending against such loss, claim,
damage, liability, cost, expense or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability, cost or expense (A) arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus Supplement or the Prospectus
Supplement (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, (B) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus Supplement or the Prospectus Supplement (or
any amendment thereof or supplement thereto) in reliance upon and in
conformity with (1) the Master Tape (it being acknowledged that the Master
Tape was used to prepare any Preliminary Prospectus Supplement and the
Prospectus Supplement, including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the accompanying diskette), (2) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or (3) any other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers furnished to the Company by any Mortgage Loan Seller, or (C)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus Supplement
or the Prospectus Supplement (or any amendment thereof or supplement thereto)
with respect to the Mortgage Loans, the Mortgaged Properties, the Borrowers
and/or the Mortgage Loan Sellers under the headings "Summary of the Prospectus
Supplement--The Mortgage Loans and the Mortgaged Properties", "Risk Factors"
and "Description of the Mortgage Pool" therein or on Exhibit A-1 or Exhibit
A-2 thereto or on the accompanying diskette, or (D) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Computational Materials or ABS Term Sheets (or any
amendments thereof or supplements thereto) furnished to prospective investors
and made a part of, or incorporated by reference into, the Registration
Statement or in any Preliminary Prospectus or the Prospectus (or any amendment
thereof or supplement thereto) by reason of a filing made pursuant to Section
9 (it being understood and agreed that if any ABS Term Sheet is both
incorporated by reference into the Prospectus or any Preliminary Prospectus
and also actually included therein, this clause (D) is intended solely to
exclude the version of such ABS Term Sheet that is incorporated by reference
therein); and provided, further, that such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling any 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 such Underwriter did not deliver
to such person a copy of the Prospectus (or the Prospectus as most recently
amended or supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is required by the
Act, the Company has previously furnished to such Underwriter copies thereof
in sufficient quantity and the untrue statement or omission of a material
-16-
fact contained in such Preliminary Prospectus was corrected in the Prospectus
(or the Prospectus as most recently amended or supplemented) and such
correction would have cured the defect giving rise to any such loss, claim,
damage, liability, cost or expense. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, against
any and all losses, claims, damages, liabilities, costs and expenses to which
the Company or any such director, officer or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities, costs and expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in (i) any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment thereof or
supplement thereto), or (ii) any Computational Materials or ABS Term Sheets
(or amendments thereof or supplements thereto) delivered to prospective
investors by such Underwriter and furnished to the Company by such Underwriter
pursuant to or as contemplated by Section 9 and made a part of, or
incorporated by reference in, the Registration Statement or in any Preliminary
Prospectus Supplement or the Prospectus (or any amendment thereof or
supplement thereto) by reason of a filing made pursuant to Section 9, or arise
out of or are based on the omission or alleged omission to state in any such
document a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made (and, in the case of
Computational Materials and ABS Term Sheets, when read in conjunction with the
Prospectus), not misleading; provided, however, that no Underwriter shall be
liable for any such loss, claim, damage, liability, cost or expense that
arises out of an untrue statement or alleged untrue statement or omission or
alleged omission in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto), including,
without limitation, any ABS Term Sheet actually included therein, except to
the extent that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by such
Underwriter directly for use in such document; and provided, further, that no
Underwriter shall be liable to the extent that any loss, claim, damage,
liability, cost or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission in any
Computational Materials or ABS Term Sheets (or any amendment thereof or
supplement thereto) made in reliance upon and in conformity with (A) the
Master Tape (it being acknowledged that the Master Tape was used to prepare
any Computational Materials and ABS Term Sheets), (B) the representations and
warranties of any Mortgage Loan Seller set forth in or made pursuant to the
related Mortgage Loan Purchase and Sale Agreement or (C) any other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers furnished to the Underwriters by the Company or any Mortgage
Loan Seller (the error in the Master Tape or any such other information
concerning the characteristics of the Mortgage Loans, the Mortgaged Properties
or the Borrowers or the breach in such representations and warranties that
gave rise to such untrue statement or omission, a "Collateral Error"), except
to the extent that the related Mortgage Loan Seller or the Company notified
such Underwriter in writing of such Collateral Error or provided in written or
electronic form
-17-
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, the
first two sentences of the last paragraph on page S-3, and the first sentence
of the third paragraph, the first sentence of the fifth paragraph and the
first sentence of the sixth paragraph under the heading "Method of
Distribution" in the Prospectus Supplement and any Preliminary Prospectus
Supplement constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred to
in the foregoing indemnity (other than any Computational Materials or ABS Term
Sheets (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 you 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 a
particular Underwriter shall relate exclusively to and be, to the extent
provided herein, the several responsibility of such Underwriter and no other
Underwriter.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) of this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under paragraph (a) or (b) of this Section
8, notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
paragraph (a) or (b), as applicable, of this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party); provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
-18-
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel, approved by you
in the case of paragraph (a) of this Section 8 and by the Company in the case
of paragraph (b) of this Section 8, representing the indemnified parties under
such paragraph (a) or (b), as the case may be, who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall be only in respect
of the counsel referred to in such clause (i) or (iii). No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 8 (whether
or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages,
liabilities, costs or expenses referred to in and intended to be covered under
such paragraph (a) or (b), as the case may be, above, then the indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities, costs or expenses as
follows:
(i) in the case of any such losses, claims, damages,
liabilities, costs and expenses (or actions in respect thereof)
referred to in and intended to be covered under paragraph (a) above,
in such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the
Offered Certificates specified in Schedule II hereto and the Company
is responsible for the balance (or, if such allocation is not
permitted by applicable law or if the indemnified party failed to
give the notice required in Section 8(c) or in the last paragraph of
this Section 8(d), in such proportion as would be determined pursuant
to the immediately following clause (ii)); provided, however, that in
no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Offered
Certificates or in Section 8(e)) be responsible under this
subparagraph (i) for any amount in excess of the underwriting
discount applicable to the Offered Certificates purchased by such
Underwriter hereunder; and
(ii) in the case of any losses, claims, damages,
liabilities, costs and expenses (or actions in respect thereof)
referred to in and intended to be covered under paragraph (b)
-19-
above, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Underwriters on the
other in connection with the statement or omissions which resulted in
such losses, claims, damages, liabilities, costs or expenses (or
actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact that is the basis for such loss, claim, damage,
liability, cost or expense, results from information prepared by the
Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities, costs or expenses (or actions in respect thereof) referred to
above in this Section 8 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to
the extent that the indemnifying party will be ultimately obligated to pay
such expenses. If any expenses so paid by the indemnifying party are
subsequently determined to not be required to be borne by the indemnifying
party hereunder, the indemnified party that received such payment shall
promptly refund the amount so paid to the indemnifying party.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8(d), each person who controls an Underwriter within
the meaning of the Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the preceding sentence of this Section 8(d). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this Section 8(d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
liability it or they may have otherwise than under this Section 8(d).
-20-
(e) The Underwriters further agree as follows:
(i) DLJSC will indemnify and hold harmless Goldman against any
losses, claims, damages, liabilities, costs or expenses to which Goldman 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 relating to the Offered
Certificates (or any amendments thereof or supplements thereto) prepared by
DLJSC without Xxxxxxx'x participation, or (ii) any Computational Materials (or
any amendments thereof or supplements thereto) developed, mailed or otherwise
transmitted by DLJSC, or (iii) 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 Goldman
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) Goldman will indemnify and hold harmless DLJSC against any
losses, claims, damages, liabilities, costs or expenses to which DLJSC 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 relating to the Offered
Certificates (or any amendments thereof or supplements thereto) prepared by
Goldman without DLJSC's participation, or (ii) any Computational Materials (or
any amendments thereof or supplements thereto) developed, mailed or otherwise
transmitted by Goldman, or (iii) 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 Goldman for use in such document; and Goldman will reimburse DLJSC
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.
(iii) 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 the 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 (iii)(A) shall not
cover any losses, claims, damages, liabilities, costs or expenses referred to
in and
-21-
intended to be covered by clause (i) or (ii) of this Section 8(e)); and each
Underwriter will pay such proportionate share of any legal or other expenses
reasonably incurred by the other 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 (iii)
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.
(iv) The provisions of Section 8(c) shall apply as between the two
Underwriters with respect to indemnities and payments under this Section 8(e),
except a contributing Underwriter under clause (iii) of this Section 8(e)
cannot assume the defense of any action.
(v) If the indemnities or payments provided in clauses (i), (ii) or
(iii) of this Section 8(e), as the case may be, are unavailable to or, except
in the case of clause (iii) of this Section 8(e), insufficient to hold
harmless an indemnified party or beneficiary under such clause in respect of
any losses, claims, damages, liabilities, costs or expenses (or actions in
respect thereof) referred to therein and intended to be covered thereby, then
the indemnifying or contributing Underwriter 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 DLJSC on the one hand and Goldman on the other, in each case as
Underwriter, from the offering of the Offered Certificates, and the relative
fault of DLJSC on the one hand and Goldman 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
DLJSC on the one hand and Goldman 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 DLJSC on the one hand and Goldman 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 DLJSC on the one hand or Goldman 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 or beneficiary as a result of the losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof)
referred to above in this clause (y) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party or beneficiary in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this clause (y), neither DLJSC nor Goldman
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)
-22-
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(vi) The obligations of DLJSC under clauses (i), (iii) and
(v) 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 Goldman within the meaning of
the Act or the Exchange Act, and the obligations of Goldman under
clauses (ii), (iii) and (v) above shall be in addition to any
liability which Goldman may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls DLJSC
within the meaning of the Act or the Exchange Act.
9. Computational Materials and ABS Term Sheets. (a) Not
later than 10:30 a.m., New York City time, on the date hereof, the Underwriters
shall deliver to the Company and its counsel, as provided below, a complete
copy of all materials provided by the Underwriters to prospective investors in
the Offered Certificates which constitute either (i) "Computational Materials"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters ") or (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter" and, together with the Xxxxxx
Letters, the "No Action Letters"), if the filing of such materials with the
Commission is a condition of the relief granted in such letters and, in the
case of any such materials that constitute "Collateral Term Sheets" within the
meaning of the PSA Letter, such Collateral Term Sheets have not previously
been delivered to the Company as contemplated by Section 9(b)(i) below. For
purposes of this Agreement, "Structural Term Sheets" shall have the meaning
set forth in the PSA Letter. Each delivery of Computational Materials and/or
ABS Term Sheets to the Company and its counsel pursuant to this paragraph (a)
shall be made in paper form and, in the case of ABS Term Sheets, electronic
format suitable for filing with the Commission.
(b) Each Underwriter represents and warrants to and agrees
with the Company, as of the date hereof and as of the Closing Date, as
applicable, that:
(i) if such Underwriter has provided any Collateral Term
Sheets to potential investors in the Offered Certificates prior to
the date hereof and if the filing of such materials with the
Commission is a condition of the relief granted in the PSA Letter,
then in each such case such Underwriter delivered to the Company and
its counsel, in the manner contemplated by Section 9(a), a copy of
such materials no later than 10:30 a.m., New York City time, on the
first business day following the date on which such materials were
initially provided to a potential investor;
-23-
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Offered Certificates furnished by such Underwriter
(whether in written, electronic or other format) to prospective investors in
the Offered Certificates prior to the date hereof, except for any Preliminary
Prospectus and any Computational Materials and ABS Term Sheets with respect to
the Offered Certificates which are not required to be filed with the
Commission in accordance with the No-Action Letters, and all Computational
Materials and ABS Term Sheets provided by such Underwriter to potential
investors in the Offered Certificates comply with the requirements of the
No-Action Letters;
(iii) on the respective dates any such Computational Materials and/or
ABS Term Sheets with respect to the Offered Certificates referred to in
Section 9(b)(ii) were last furnished by such Underwriter to each prospective
investor, on the date of delivery thereof to the Company pursuant to or as
contemplated by this Section 9 and on the Closing Date, such Computational
Materials and/or ABS Term Sheets did not and will not include any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Certificates were furnished to a prospective investor
and on the date hereof, 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 Section 9(b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective investors contained
and will contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Prospectus and, except in
the case of the initial Collateral Term Sheet, that such information
supersedes the information in all prior Collateral Term Sheets;
(vi) all Computational Materials and ABS Term Sheets with respect to
the Offered Certificates furnished by such Underwriter to prospective
investors contained and will contain a legend generally to the effect that the
Company has not participated in the preparation of or authorized the
distribution of such Computational Materials or ABS Term Sheets; and
-24-
(vii) on and after the date hereof, such Underwriter shall
not deliver or authorize the delivery of any Computational Materials,
ABS Term Sheets or other materials relating to the Offered
Certificates (whether in written, electronic or other format) to any
potential investor unless such potential investor has received a
Prospectus prior to or at the same time as the delivery of such
Computational Materials, ABS Term Sheets or other materials;
provided that 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 or omission
resulting directly from any Collateral Error (except any Corrected Collateral
Error, with respect to materials prepared after the receipt by the Underwriters
from the related Mortgage Loan Seller or the Company of notice of such
Corrected Collateral Error or materials superseding or correcting such
Corrected Collateral Error).
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary
in the opinion of the Underwriters or counsel for either of them 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 necessary to make the statements therein, in the light
of the circumstances under which they were made (and when read in conjunction
with the Prospectus), not misleading, or if it shall be necessary to amend or
supplement any Current Report to comply with the Act or the Exchange Act or the
rules thereunder, the Underwriters, at their expense (such expense to be
allocated between them based on the relative fault of the Underwriters) (or, if
such amendment or supplement is necessary in order for any Current Report to
comply with the Act or the Exchange Act or the rules thereunder, at the expense
of the Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or supplemented. The
Company shall have no obligation to file such amendment or supplement if the
Company determines that (i) such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (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
necessary to make the statements therein, in the light of the circumstances
under which they were made, 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,
-25-
with respect to materials prepared after the receipt by the Underwriters from
the related Mortgage Loan Seller or the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(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 the Underwriters
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 (such expense to be allocated between them based on the relative fault
of the Underwriters) (or, if such amendment or supplement is necessary in
order for any Current Report to comply with the Act or the Exchange Act or the
rules thereunder, at the expense of the Company), shall prepare and furnish to
the Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance and shall distribute such amendment or supplement to each
prospective investor in the Offered Certificates that received such
information being amended or supplemented. Each Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not include
any untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, 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 related
Mortgage Loan Seller or the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral Error).
(e) The Underwriters (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 either
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),
-26-
the remaining Underwriter 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 either 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 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 the other
Underwriter by reason of its failure to take up and pay for Offered
Certificates as agreed by such Defaulting Underwriter.
11. Termination Upon the Occurrence of Certain Events. This
Agreement shall be subject to termination in the absolute discretion of the
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 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 5(g), 1, 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 and DLJ Mortgage Capital, Inc. (the "Additional
Party") in accordance with this Section 13); or, if sent to the Company, will
be mailed, delivered or either telegraphed or transmitted by
-27-
telecopier and confirmed to it at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: X. Xxxxx XxXxxxx (or at such other address as may be
furnished by the Company to each Underwriter in accordance with this Section
13); or, if sent to the Additional Party, will be mailed, delivered or either
telegraphed or transmitted by telecopier and confirmed to it at 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: X. Xxxxx XxXxxxx (or
at such other address as may be furnished by the Additional Party 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. 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.
16. Obligations of the Additional Party. The Additional
Party agrees, in consideration of and as an inducement to the Underwriters'
purchase of the Offered Certificates from the Company, to indemnify and hold
harmless each Underwriter, and each person who controls each Underwriter
within the meaning of the Act or the Exchange Act, against any failure by the
Company to perform any of its obligations under Section 8 hereof (as they
relate to the indemnity agreement of the Company in Section 8(a) and the
corresponding contribution obligations in Section 8(d) (the "Covered
Obligation )), promptly after receipt from any Underwriter of written notice
of any such failure. The Additional Party hereby waives notice of acceptance
of its obligations hereunder and notice of any obligation or liability to
which it may apply, and waives presentment, demand for payment, protest,
notice of dishonor or non-payment of any such obligation or liability, suit or
the taking of other action by any party hereto against, and any other notice
to, the Additional Party. The Additional Party's obligations hereunder shall
not be affected by any events, occurrences or circumstances which might
otherwise constitute a legal or equitable discharge or defense of a guarantor
or surety, and such obligations will only be discharged by full, complete and
final payment of the Covered Obligations.
[SIGNATURE PAGE FOLLOWS]
-28-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Additional Party and the several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By: /s/ X. Xxxxx XxXxxxx
-------------------------------------
Name: X. Xxxxx XxXxxxx
Title: Senior Vice President
DLJ MORTGAGE CAPITAL, INC.*
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.
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.
XXXXXXX, XXXXX & CO.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Attorney-In-Fact
DLJ Mortgage Capital, Inc. is executing this Underwriting Agreement
solely with respect to its obligations set forth in Section 16 and
with respect to the matters set forth in Section 12, Section 13,
Section 14 and Section 15.
SCHEDULE I
Principal or Notional
Amount of Relevant
Class of Offered
Underwriters (and addresses) Class Certificates to be Purchased
---------------------------- ----- ----------------------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Class S $755,214,803(l)
Securities Corporation Class A-I A $120,805,000
000 Xxxx Xxxxxx Class A-IB $445,101,500
New York, New York 10172 Class A-2 $34,884,500
Attention: X. Xxxxx XxXxxxx Class A-3 $40,699,000
Class A-4 $9,690,000
Class B-1 $29,070,500
Class B-2 $11,628,500
Xxxxxxx, Xxxxx & Co. Class S $755,214,803(1)
00 Xxxxx Xxxxxx Class A- I A $120,805,000
New York, NY 10004 Class A- I B $445,101,500
Class A-2 $34,884,500
Class A-3 $40,699,000
Class A-4 $9,690,000
Class B- 1 $29,070,500
Class B-2 $11,628,500
------------
(1) Notional Amount
SCHEDULE II
Registration Statement No. 333-59167
Basic Prospectus dated June 3, 1999
Prospectus Supplement dated June 11, 1999
Title of Offered Certificates Commercial Mortgage Pass-Through
Certificates, Series 1999-CG2, Class S,
Class A- I A, Class A- I B,
Class A-2, Class A-3, Class A-4,
Class B-I and Class B-2
Cut-off Date: June 1, 1999
Closing: 10:00 a.m. on June 22, 1999
at the offices of
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Schedule II (continued)
Initial
Aggregate Certificate
Principal Balance
or Notional Initial Purchase
Class Designation Amount of Class(1) Pass-Through Rate Price(2) Rating(3)
----------------- ------------------ ----------------- --------- ---------
Class S $1,550,429,606 0.4577% 3.359375% Aaa/AAA
Class A-I A $241,610,000 6.8800% 100.515625% Aaa/AAA
Class A-I B $890,203,000 7.3000% 101.500000% Aaa/AAA
Class A-2 $69,769,000 7.4500% 101.515625% Aa2/AA
Class A-3 $81,398,000 7.6067% 101.500000% A2/AA
Class A-4 $19,380,000 7.6067% 101.359375% A3/A
Class B-1 $58,141,000 7.6067% 99.328125% Baa2/BBB
Class B-2 $23,257,000 7.6067% 93.875000% Baa2/BBB-
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Certificates to be purchased.
The purchase price for each class of the Offered Certificates will include
accrued interest at the initial Pass-Through Rate therefor on the aggregate
stated or notional amount, as applicable, thereof to be purchased from the
Cut-off Date to but not including the Closing Date.
(3) By each of Xxxxx'x Investors Service, Inc. and Fitch IBCA, Inc.,
respectively
(4) Aggregate Notional Amount.
