FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
Charlotte, North Carolina
____________, 199_
________________________________
As Representative of the several
Underwriters named in Schedule
II hereto
____________________
____________________
____________________
Dear Sirs:
First Union Commercial Mortgage Securities, Inc., a North Carolina
corporation (the "Company"), proposes to issue its Commercial Mortgage
Pass-Through Certificates, Series 199[ ]-CMBS-[ ] (the "Certificates"), in [ ]
classes (each, a "Class") to be designated as the Class [ ] Certificates, the
Class [ ] Certificates, the Class [ ] Certificates and the Class [ ]
Certificates. The Company further proposes to sell to the Underwriters named in
Schedule II hereto, for whom you are acting as Representative, the [Class [ ]
Certificates and Class [ ] Certificates (the "Underwritten Certificates") in the
respective original principal amounts set forth in Schedule I hereto]. The
Certificates will represent in the aggregate the entire beneficial ownership
interest in a trust fund (the "Trust Fund") consisting primarily of a segregated
pool (the "Mortgage Pool") of mortgage loans (the "Mortgage Loans") secured by
[first] [junior] liens on the borrowers' fee (or in [ ] cases, leasehold)
interests in multifamily and commercial properties (the "Mortgaged Properties").
The Trust Fund will be created, the Certificates will be issued and the Mortgage
Pool will be serviced and administered pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), to be dated as of
_______________, 199_ (the "Cut-off Date"), among the Company,
__________________, as master servicer (the "Master Servicer"), [ , as special
servicer (the "Special Servicer")] and ___________, as trustee (the "Trustee").
[The Mortgage Loans are owned, as of the date hereof, by _____________________
(the "Mortgage Loan Seller") and will be acquired by the Company, on or before
the Closing Date (as hereinafter defined), pursuant to a mortgage loan purchase
agreement (the "Mortgage Loan Purchase Agreement"), dated [the date hereof],
between the Company and the Mortgage Loan Seller.] The Underwritten Certificates
and the Mortgage Pool are described more fully in Schedule I hereto and in a
registration statement furnished to you by the Company.
If the firm or firms listed in Schedule II hereto include only , then
the terms "Underwriters" and "Representative", as used herein, shall each be
deemed to refer to . Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement.
1. Representations and Warranties. (I) 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. 33-_______) on Form S-3
for the registration of Commercial Mortgage Pass-Through Certificates,
issuable in series, including the Underwritten Certificates, under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has become effective and a copy of which, as amended to the date
hereof, has heretofore been delivered to you. The Company meets the
requirements for use of Form S-3 under the 1933 Act, and such registration
statement, as amended at the date hereof, meets the requirements set forth
in Rule 415(a)(1)(x) under the 1933 Act and complies in all other material
respects with the 1933 Act and the rules and regulations thereunder. The
Company proposes to file with the Commission, with your consent, pursuant
to Rule 424 under the 1933 Act, a supplement dated ____________, 199_ (the
"Prospectus Supplement") to the prospectus dated _______________, 199_ (the
"Basic Prospectus"), relating to the Underwritten Certificates and the
method of distribution thereof, and has previously advised you of all
further information (financial and other) with respect to the Underwritten
Certificates and the Mortgage Pool to be set forth therein. Such
registration statement (No. 33-_____________), including all exhibits
thereto, is referred to herein as the "Registration Statement"; and the
Basic Prospectus and the Prospectus Supplement, together with any amendment
thereof or supplement thereto authorized by the Company prior to the
Closing Date for use in connection with the offering of the Underwritten
Certificates, are hereinafter called the "Prospectus". Any preliminary form
of the Prospectus Supplement that has heretofore been filed pursuant to
Rule 424 or, prior to the effective date of the Registration Statement,
pursuant to Rule 402(a) or 424(a), is hereinafter called a "Preliminary
Prospectus Supplement". If so stated in the Prospectus Supplement, the
Company will file with the Commission within fifteen days of the issuance
of the Underwritten Certificates a report on Form 8-K ("8-K") setting forth
specific information concerning the Mortgage Pool and the Underwritten
Certificates to the extent that such information is not set forth in the
Prospectus Supplement.
(b) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of 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, complies and will comply in all material respects with the
applicable requirements of
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the 1933 Act and the rules and regulations thereunder, (ii) the
Registration Statement, as amended as of any such time, does not contain
and will not contain any untrue statement of a material fact and does not
omit and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (iii) the Prospectus, as amended or supplemented as of any
such time, does not contain and will not contain any untrue statement of a
material fact and does not omit and will not omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
statements contained in or omitted from the Registration Statement or the
Prospectus or any amendment or supplement thereto made in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through you specifically for use in the
Registration Statement and the Prospectus.
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of North Carolina
with corporate power and authority to own, lease or operate its properties
and to conduct its business as now conducted by it and to enter into and
perform its obligations under this Agreement and the Pooling and Servicing
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business.
(d) As of the date hereof, as of the date on which the Prospectus
Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of
the date on which, prior to the Closing Date, any amendment to the
Registration Statement becomes effective, as of the date on which any
supplement to the Prospectus Supplement is filed with the Commission, and
as of the Closing Date, there has not and will not have been (i) any
request by the Commission for any further amendment to the Registration
Statement or the Prospectus or for any additional information, (ii) any
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or any initiation or threat of any proceeding for such
purpose.
(e) This Agreement has been duly authorized, executed and delivered by
the Company, and the Pooling and Servicing Agreement, when executed and
delivered as contemplated hereby and thereby, will have been duly
authorized, executed and delivered by the Company; and this Agreement
constitutes, and the Pooling and Servicing Agreement, when so executed and
delivered will constitute, legal, valid and binding agreements of the
Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors
generally, (ii) general principles of equity,
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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
the provisions of this Agreement or the Pooling and Servicing Agreement
that purport to provide indemnification from or contributions relating to
securities law liabilities.
(f) As of the Closing Date, the Underwritten Certificates and the
Pooling and Servicing Agreement will conform in all material respects to
the respective descriptions thereof contained in the Prospectus. As of the
Closing Date, the Underwritten Certificates will be duly and validly
authorized and, when duly and validly executed, authenticated and delivered
in accordance with the Pooling and Servicing Agreement to you against
payment therefor as provided herein, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement.
(g) As of the Closing Date, each of the Mortgage Loans will meet the
criteria for selection described in the Prospectus, and on the Closing Date
the representations and warranties of the Company with respect to the
Mortgage Loans contained in the Pooling and Servicing Agreement will be
true and correct in all material respects.
(h) The Company is not in violation of its certificate of incorporation
or by-laws or in default under any agreement, indenture or instrument the
effect of which violation or default would be material to the Company.
Neither the issuance and sale of the Underwritten Certificates, nor the
execution and delivery by the Company of this Agreement or the Pooling and
Servicing Agreement, nor the consummation by the Company of any of the
transactions herein or therein contemplated, nor compliance by the Company
with the provisions hereof or thereof, does or will conflict with or result
in a breach of any term or provision of the certificate of incorporation or
by-laws of the Company or conflict with, result in a breach, violation or
acceleration of, or constitute a default under, the terms of any indenture
or other agreement or instrument to which the Company is a party or by
which it is bound, or any statute, order or regulation applicable to the
Company of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company.
(i) Other than as set forth or contemplated in the Prospectus, there is
no action, suit or proceeding against the Company pending, or, to the
knowledge of the Company, threatened, before any court, arbitrator,
administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement or the Underwritten
Certificates, (ii) seeking to prevent the issuance of the Underwritten
Certificates or the consummation of any of the transactions contemplated by
this Agreement or the Pooling and Servicing Agreement, (iii) that 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
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the Underwritten Certificates or (iv) seeking to affect adversely the
federal income tax attributes of the Underwritten Certificates as described
in the Prospectus.
(j) There are no contracts, indentures or other documents of a
character required by the 1933 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.
(k) 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 Underwritten Certificates hereunder, 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 Underwritten Certificates by
the Underwriters and any recordation of the respective assignments of the
Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that have not been completed.
(l) 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.
(m) Any taxes, fees and other governmental charges in connection with
the execution and delivery of this Agreement and the Pooling and Servicing
Agreement or the execution, delivery and sale of the Underwritten
Certificates (other than such federal, state and local taxes as may be
payable on the income or gain recognized therefrom) have been or will be
paid at or prior to the Closing Date.
(n) 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.
(o) Neither the Company nor the Trust Fund is, and neither the issuance
and sale of the Underwritten Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the Pooling and
Servicing Agreement will cause the Company or the Trust Fund to be, an
"investment company" or under the control of an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act").
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(p) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Company will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Underwritten Certificates
and the sale of the Underwritten Certificates to the Underwriters pursuant
to this Agreement as a sale of the interests in the Mortgage Loans
evidenced by the Underwritten Certificates. The consideration received by
the Company upon the sale of the Underwritten Certificates to the
Underwriters will constitute reasonably equivalent value and fair
consideration for the Underwritten Certificates. The Company will be
solvent at all relevant times prior to, and will not be rendered insolvent
by, the sale of the Underwritten Certificates to the Underwriters. The
Company is not selling the Underwritten Certificates to the Underwriters
with any intent to hinder, delay or defraud any of the creditors of the
Company.
(q) At the Closing Date, the respective classes of Underwritten
Certificates shall have been assigned ratings no lower than those set forth
in Schedule 1 hereto by the nationally recognized statistical rating
organizations identified in Schedule 1 hereto (individually and
collectively, the "Rating Agency").
(r) At the Closing Date, each of the representations and warranties of
the Company set forth in the Pooling and Servicing Agreement will be true
and correct in all material respects.
(II) Each Underwriter represents and warrants to the Company that, as
of the date hereof and as of the Closing Date, (i) such Underwriter has complied
with all of its obligations hereunder and (ii) with respect to all Computational
Materials and ABS Term Sheets, if any, provided by such Underwriter to the
Company pursuant to Section 4(b)(iv), such Computational Materials and ABS Term
Sheets are accurate in all material respects (taking into account the
assumptions explicitly set forth in the Computational Materials or ABS Term
Sheets) and constitute a complete set of all Computational Materials and ABS
Term Sheets that are required to be filed with the Commission pursuant to
Section 5(g).
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at the applicable purchase prices set
forth in Schedule I hereto, the respective principal amounts of the Underwritten
Certificates set forth opposite the name of each Underwriter set forth in
Schedule II hereto, and any additional portions of the Underwritten Certificates
that any such Underwriter may be obligated to purchase pursuant to Section 10,
in all cases plus accrued interest as set forth in Schedule I.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Certificates shall be made in the manner, at the location(s), on the date and at
the time specified in Schedule I hereto (or such later date not later than ten
business days after such specified date as you shall designate), which date and
time may be changed by agreement between you and the Company or as provided in
Section 10 hereof (such date and time of
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delivery and payment for the Underwritten Certificates being herein called the
"Closing Date"). Delivery of the Underwritten Certificates shall be made either
directly to you or through the facilities of The Depository Trust Company
("DTC"), as specified in Schedule I hereto, for the respective accounts of the
Underwriters against payment by the respective Underwriters through you of the
purchase price therefor in immediately available funds wired to such bank as may
be designated by the Company, or such other manner of payment as may be agreed
upon by the Company and you. Any Class of Underwritten Certificates to be
delivered through the facilities of DTC shall be represented by one or more
global Certificates registered in the name of Cede & Co., as nominee of DTC,
which global Certificate(s) shall be placed in the custody of DTC not later than
10:00 a.m. (New York City time) on the Closing Date pursuant to a custodial
arrangement to be entered into between the Trustee or its agent and DTC. Unless
delivered through the facilities of DTC, the Underwritten Certificates shall be
in fully registered certificated form, in such denominations and registered in
such names as you may have requested in writing not less than one full business
day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates, including the
global Certificates representing the Underwritten Certificates to be delivered
through the facilities of DTC, available for inspection, checking and, if
applicable, packaging by you in New York, New York, not later than the close of
business (New York City time) on the business day preceding the Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Underwritten Certificates that are to be delivered through the facilities
of DTC shall include, if the context so permits, actions taken or to be taken
with respect to the interests in such Certificates as reflected on the books and
records of DTC.
4. Offering by Underwriters.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without
limitation, in and from the State of New York, as set forth in the
Prospectus Supplement. It is further understood that the Company, in
reliance upon a no-filing letter from the Attorney General of the State of
New York granted pursuant to Policy Statement 105, has not and will not
file an offering statement pursuant to Section 352-c of the General
Business Law of the State of New York with respect to the _______________
Certificates. Each of the Underwriters therefore covenants and agrees with
the Company that sales of the ____________ Certificates made by such
Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
(b) Each Underwriter may prepare and provide to prospective investors
certain Computational Materials, Structural Term Sheets or Collateral Term
Sheets in connection with its offering of the Certificates, subject to the
following conditions:
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(i) Such Underwriter shall comply with the requirements of the
no-action letter, dated May 20, 1994, issued by the Commission to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association, dated May
25, 1994 (collectively, the "▇▇▇▇▇▇/PSA Letter"), and the requirements
of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "PSA Letter" and,
together with the ▇▇▇▇▇▇/PSA Letter, the "No-Action Letters").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include
only those Computational Materials that have been prepared or delivered
to prospective investors by or at the direction of such Underwriter.
For purposes hereof, "ABS Term Sheets," "Structural Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in
the PSA Letter but shall include only those ABS Term Sheets, Structural
Term Sheets or Collateral Term Sheets that have been prepared for or
delivered to prospective investors by or at the direction of such
Underwriter.
(iii) All Computational Materials and ABS Term Sheets provided to
prospective investors shall bear a legend in a form previously approved
in writing by the Company. The Company shall have the right to require
additional specific legends or notations to appear on any Computational
Materials or ABS Term Sheets, the right to require changes regarding
the use of terminology and the right to determine the types of
information appearing therein.
(iv) Such Underwriter shall provide the Company with
representative forms of all Computational Materials and ABS Term Sheets
prior to their first use, to the extent such forms have not previously
been approved by the Company for use by the Underwriter. Such
Underwriter shall not distribute any such Computational Materials or
ABS Term Sheets unless the forms and methodology thereof have been
approved by the Company. Such Underwriter shall provide to the Company,
for filing on Form 8-K as provided in Section 5(g), copies (in such
format as required by the Company) of all Computational Materials and
ABS Term Sheets. The Underwriter may provide copies of the foregoing in
a consolidated or aggregated form including all information required to
be filed. All Computational Materials and ABS Term Sheets described in
this subsection (iv) must be provided to the Company (a) in a medium
suitable for electronic filing with the Commission under ▇▇▇▇▇, or a
medium that can be readily converted to such a medium (unless, as to
Computational Materials, an exemption is granted under Regulation S-T,
in which case the Computational Materials shall be provided in paper
format
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suitable for filing with the Commission) and (b) not later than 10:00
a.m. (New York City time) on a business day that is not less than one
business day before filing thereof is required pursuant to the terms of
the No-Action Letters.
(v) All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same
methodology and assumptions as are used to generate the information in
the Prospectus Supplement as set forth therein; provided that the
Computational Materials and ABS Term Sheets may include information
based on alternative methodologies or assumptions if specified therein.
If any Computational Materials or ABS Term Sheets were based on
assumptions with respect to the Mortgage Pool that differ from the
final Pool Information in any material respect or on Underwritten
Certificate structuring terms (except in the case of Computational
Materials when the different structuring terms were hypothesized and so
described) that were revised in any material respect prior to the
printing of the Prospectus, such Underwriter shall immediately inform
the Company and upon the direction of the Company shall prepare revised
Computational Materials and ABS Term Sheets, as the case may be, based
on the final Pool Information and structuring assumptions, circulate
such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof, and include such
revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to
subsection (iv) above.
(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that, at the request of such
Underwriter, the Company will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked
"superseded by materials dated ____________ __" and accompanied by
corrected Computational Materials or ABS Term Sheets that are marked
"material previously dated ___________ __, as corrected." If, within
the period during which the Prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 Act, any
Computational Materials or ABS Term Sheets are determined, in the
reasonable judgment of the Company or such Underwriter, to contain a
material error or omission, the Underwriter shall prepare a corrected
version of such Computational Materials or ABS Term Sheets, shall
circulate such corrected Computational Materials or ABS Term Sheets to
all recipients of the prior versions thereof, and shall deliver copies
of such corrected Computational Materials or ABS Term Sheets (marked,
"as corrected") to the Company for filing with the Commission in a
subsequent Form 8-K submission (subject to the Company's obtaining an
accountant's comfort letter in respect of such corrected Computational
Materials and ABS Term Sheets, which shall be at the expense of such
Underwriter).
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(vii) Such Underwriter shall be deemed to have represented, as of
the Closing Date, that except for Computational Materials and/or ABS
Term Sheets provided to the Company pursuant to subsection (iv) above,
such Underwriter did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Underwritten Certificates that is required to be filed
with the Commission in accordance with the No-Action Letters, and such
Underwriter shall provide the Company with a certification to that
effect on the Closing Date.
(viii) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and ABS Term
Sheets required to be delivered in accordance with subsection (iv)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing
Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with its agreement set forth in
Section 5(g) to file the Computational Materials and ABS Term Sheets by
the time specified therein.
(ix) Computational Materials and ABS Term Sheets may be
distributed by the Underwriter through electronic means in accordance
with SEC Release No. 33-7233 (the "Release") and with such procedures
as the Company may prescribe from time to time.
(x) Such Underwriter represents that it has in place, and
covenants that it shall maintain, internal controls and procedures
which it reasonably believes to be sufficient to ensure full compliance
with all applicable legal requirements of the No-Action Letters with
respect to the generation and use of Computational Materials and ABS
Term Sheets in connection with the offering of the Underwritten
Certificates.
(c) Each Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements
with respect to each class of Underwritten Certificates to the extent such
information can in the good faith judgment of the Underwriter be determined
by it.
5. Covenants of the Company. The Company covenants and agrees with the
Underwriters ------------------------- that:
(a) The Company will not file any amendment to the Registration
Statement or any supplement to the Basic Prospectus relating to or
affecting the Underwritten Certificates, unless the Company has furnished a
copy to you for your review prior to filing, and will not file any such
proposed amendment or supplement to which you reasonably object. 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
1933 Act or will cause the Prospectus Supplement to be filed with the
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Commission pursuant to said Rule 424. The Company promptly will advise you
or counsel for the Underwriters (i) when the Prospectus Supplement shall
have been filed or transmitted to the Commission for filing pursuant to
Rule 424, (ii) when any amendment to the Registration Statement shall have
become effective, (iii) of any request by the Commission to amend the
Registration Statement or supplement the Prospectus Supplement or for any
additional information in respect of the offering contemplated hereby, (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto which shall have become effective on or prior to the Closing Date
or the institution or threatening of any proceeding for that purpose, and
(v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Underwritten Certificates for sale
in any jurisdiction or the institution or threatening of any proceeding for
that purpose. The Company will use its best efforts to prevent the issuance
of any such stop order or suspension and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 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 1933 Act or the rules and regulations thereunder, the Company
promptly will prepare and file with the Commission, at the expense of the
Company, 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, the Company will use its best efforts to cause such amendment to
the Registration Statement to be made effective as soon as possible.
(c) The Company will furnish to you and to counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and each such
amendment and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the 1933 Act, as many copies of any Preliminary
Prospectus Supplement and the Prospectus Supplement and any amendments and
supplements thereto as you may reasonably request.
(d) The Company will furnish such information, execute such instruments
and take such action, if any, as may be required to qualify the
Underwritten Certificates for sale under the laws of such jurisdictions as
you may designate and will maintain such qualifications in effect so long
as required for the distribution of the Underwritten Certificates;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now qualified or to take any
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action that would subject it to general or unlimited service of process in
any jurisdiction where it is not now subject to such service of process.
(e) The Company will pay, or cause to be paid, all costs and expenses
in connection with the transactions herein contemplated, including, but not
limited to, the fees and disbursements of its counsel; the costs and
expenses of printing (or otherwise reproducing) and delivering the Pooling
and Servicing Agreement and the Underwritten Certificates; the fees and
disbursements of accountants for the Company; the costs and expenses in
connection with the qualification or exemption of the Underwritten
Certificates under state securities or "blue sky" laws, including filing
fees and reasonable fees and disbursements of counsel in connection
therewith, in connection with the preparation of any blue sky survey and in
connection with any determination of the eligibility of the Underwritten
Certificates for investment by institutional investors and the preparation
of any legal investment survey; the expenses of printing any such blue sky
survey and legal investment survey; ]the cost and expenses in connection
with the preparation, printing and filing of the Registration Statement
(including exhibits thereto), the Basic Prospectus, the Preliminary
Prospectus Supplement, if any, and the Prospectus Supplement, the
preparation and printing of this Agreement and the delivery to the
Underwriters of such copies of each Preliminary Prospectus Supplement, if
any, and Prospectus Supplement as you may reasonably request; and the fees
of the Rating Agency that are rating the Underwritten Certificates. Except
as provided in Section 7, the Underwriters shall be responsible for paying
all costs and expenses incurred by them in connection with the purchase and
sale of the Underwritten Certificates.
(f) The Company will enter into the Pooling and Servicing Agreement on
or prior to the Closing Date.
(g) The Company shall, as to itself, and the Company, or pursuant to
the Pooling and Servicing Agreement the Trustee, shall, as to the Trust
Fund, satisfy and comply with all reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder. The Company will also file with the Commission a
report on Form 8-K setting forth all Computational Materials and ABS Term
Sheets provided to the Company by an Underwriter and identified by it as
such within the time period allotted for such filing pursuant to the
No-Action Letters; provided, however, that prior to such filing of the
Computional Materials and ABS Term Sheets by the Company, each Underwriter
must comply with its obligations pursuant to Section 4. The Company shall
file any corrected Computational Materials described in Section 4(b)(v) as
soon as practicable following receipt thereof.
(h) The Company will seek to obtain from the staff of the Commission a
Continuing Hardship Exemption from electronic filing of Computational
Materials with the Commission under ▇▇▇▇▇ pursuant to Regulation S-T,
allowing Computational Materials to be filed with the Commission in paper
format.
-12-
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters hereunder to purchase the Underwritten Certificates shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof and as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to the
Closing Date and as of the Closing Date, to the accuracy of the statements of
the Company made in any certificates delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or, to the
Company's knowledge, threatened; and the Prospectus Supplement shall have
been filed or transmitted for filing with the Commission in accordance with
Rule 424 under the 1933 Act;
(b) You shall have received from ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, counsel
for the Underwriters, a favorable opinion, dated the Closing Date, as to
satisfaction of the conditions precedent to the Underwriters' obligations
to purchase the Underwritten Certificates and such other matters regarding
the Underwritten Certificates as you may reasonably request;
(c) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the
Closing Date, 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 that
are required hereby to be performed or satisfied at or prior to the Closing
Date;
(d) You shall have received with respect to the Company a good standing
certificate from the Secretary of State of the State of North Carolina,
dated not earlier than 30 days prior to the Closing Date;
(e) You 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
-13-
Company) has occurred since the date of the good standing certificate
referred to in paragraph 6(d) above which has affected the good standing of
the Company under the laws of the State of North Carolina. 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;
(f) You shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for
the Company, a favorable opinion, dated the Closing Date and satisfactory
in form and substance to you and counsel for the Underwriters, to the
effect that:
(i) The Company is a corporation in good standing under the laws
of the State of North Carolina and has the corporate power and
authority to enter into and perform its obligations under this
Agreement and the Pooling and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and not withdrawn, no
proceedings for that purpose have been instituted or threatened and not
terminated; and the Registration Statement, the Prospectus Supplement
and each amendment or supplement thereto, as of their respective
effective or issue dates (other than the financial statements,
schedules and other financial and statistical information contained
therein as to which such counsel need express no opinion), complied as
to form in all material respects with the applicable requirements of
the 1933 Act and the rules and regulations thereunder; and such counsel
has no reason to believe that (A) the Registration Statement (which,
for purposes of this clause, shall be deemed not to include any
exhibits filed therewith), or any amendment thereto, at the time it
became effective, contained or, as of the date of such opinion,
contains any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that (B) the Prospectus,
as amended or supplemented, contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading (other than the financial statements, schedules
and other financial and statistical information contained therein as to
which such counsel need express no opinion);
(iii) To the best knowledge of such counsel, there are no material
contracts, indentures or other documents of a character required to be
described or referred to in the Registration Statement, as amended, or
the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, as amended,
-14-
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(iv) To the best knowledge of such counsel, there are no actions,
proceedings or investigations pending before or threatened by any
court, administrative agency or other tribunal to which the Company is
a party or of which any of its properties is the subject (a) which if
determined adversely to the Company would have a material adverse
effect on the business or financial condition of the Company, (b)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement or the Underwritten Certificates, (c) seeking to prevent the
issuance of the Underwritten Certificates or the consummation by the
Company of any of the transactions contemplated by the Pooling and
Servicing Agreement or this Agreement, as the case may be, or (d) which
might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, the
Pooling and Servicing Agreement, this Agreement or the Underwritten
Certificates;
(v) Each of this Agreement and the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the Company, and
the Pooling and Servicing Agreement constitutes a valid, legal, binding
and enforceable agreement of the Company, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law;
(vi) The Underwritten Certificates, when duly and validly executed
and authenticated in the manner contemplated in the Pooling and
Servicing Agreement and delivered and paid for by the Underwriters as
provided herein, will be entitled to the benefits of the Pooling and
Servicing Agreement;
(vii) The statements set forth in the Prospectus Supplement under
the headings "Description of the 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
provisions of the Underwritten Certificates and the Pooling and
Servicing Agreement, are true and correct in all material respects;
(viii) The statements set forth in the Basic Prospectus and the
Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences", "ERISA Considerations" and "Legal Investment", to the
extent that they constitute matters of federal law or legal conclusions
with respect thereto, are correct in all material respects with respect
to those consequences or aspects that are discussed;
-15-
(ix) The Class [ ] Certificates will be "mortgage related
securities", as defined in Section 3(a)(41) of the 1934 Act, so long as
such Certificates are rated in one of the two highest rating categories
by at least one nationally recognized statistical rating organization;
(x) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and
neither the Company nor the Trust Fund is required to be registered
under the Investment Company Act;
(xi) No consent, approval, authorization or order of any State of
North Carolina or federal court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated herein or in the Pooling and Servicing Agreement, except
(A) such as have been obtained under the 1933 Act and (B) such as may
be required under the blue sky laws of any jurisdiction in connection
with the offer and sale of the Underwritten Certificates by the
Underwriters, as to which such counsel need express no opinion;
(xii) Neither the issuance and sale of the Underwritten
Certificates, nor the execution or delivery of or performance under
this Agreement or the Pooling and Servicing Agreement, nor the
consummation of any other of the transactions contemplated herein or
therein will conflict with or result in a breach or violation of any
term or provision of, or constitute a default (or an event which with
the passing of time or notification, or both, would constitute a
default) under, the certificate of incorporation or by-laws of the
Company, or, to the knowledge of such counsel, any indenture or other
agreement or instrument to which the Company is a party or by which it
is bound, or any State of North Carolina or federal statute or
regulation applicable to the Company, or, to the knowledge of such
counsel, any order of any State of North Carolina or federal court,
regulatory, body, administrative agency or governmental body having
jurisdiction over the Company;
(xiii) Assuming compliance with all provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, the Trust Fund
will qualify as a real estate mortgage investment conduit (a "REMIC")
under the Internal Revenue Code of 1986 (the "Code"), the Class [ ],
Class [ ] and Class [ ] Certificates will be the "regular interests" in
the REMIC, and the Class R Certificates will be the sole class of
"residual interests" in the REMIC; and
(xiv) The Certificates conform in all material respects to the
description thereof contained in the Prospectus; and the Pooling and
Servicing Agreement conforms in all material respects to the
description thereof contained in the Prospectus.
-16-
With respect to such opinion, such counsel may express its reliance as
to factual matters on 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; may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company; may
qualify such opinion only as to the federal laws of the United States of
America, the laws of the State of New York, the laws of the State of North
Carolina and the corporation law of the State of Delaware; and may, to the
extent deemed necessary by such counsel, rely on the opinion of counsel in
the regular employ of the Company or any affiliate of the Company or
independent North Carolina counsel. Such counsel shall also confirm that
the Underwriters may rely, on and as of the Closing Date, on any opinion or
opinions of such counsel submitted to any Rating Agency as if addressed to
the Underwriters and dated the Closing Date;
(g) You shall have received from _______________, certified public
accountants, a letter dated the Closing Date and satisfactory in form and
substance to you and counsel for the Underwriters, to the following effect:
(1) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the captions "Summary of the Prospectus Supplement," "Description
of the Mortgage Pool" and "Yield and Maturity Considerations" and on
Annex A agrees with the data sheet or computer tape prepared by or on
behalf of the Mortgage Loan Seller, unless otherwise noted in such
letter; and
(2) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (1) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and
found such data and information to be in agreement in all material
respects;
(h) You shall have received written confirmation from the Rating Agency
that the Underwritten Certificates have been assigned the rating or ratings
specified in Schedule I hereto, which rating or ratings shall not have been
withdrawn;
(i) You shall have received with respect to the Trustee a good standing
or similar certificate from the Secretary of State of the state of its
organization or, if not applicable, an appropriate federal official, dated
not earlier than 30 days prior to the Closing Date;
(j) You shall have received from the Secretary or an assistant
secretary of the Trustee, 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 Trustee, signed the Pooling and Servicing
Agreement or any other document or certificate
-18-
delivered on or before the Closing Date in connection with the transactions
contemplated 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 or certificates are their genuine signatures; and (ii) no event
(including, without limitation, any act or omission on the part of the
Trustee) has occurred since the date of the good standing or similar
certificate referred to in paragraph 6(i) above which has affected the good
standing of the Trustee under laws of the [State of___________________]
[United States].
(k) You shall have received from _____________________, counsel for the
Trustee, a favorable opinion, dated the Closing Date, in form and substance
satisfactory to you and counsel for the Underwriters, addressing such
matters as you and such counsel may reasonably require for the purpose of
enabling you and such counsel to pass upon the issuance and sale of the
Underwritten Certificates as herein contemplated and related proceedings;
(l) You shall have received with respect to the Master Servicer a good
standing or similar certificate from the Secretary of State of the state of
its organization or, if not applicable, an appropriate federal official,
dated not earlier than 30 days prior to the Closing Date;
(m) You shall have received from the Secretary or an assistant
secretary of the Master Servicer, 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 Master Servicer,
signed the Pooling and Servicing Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated 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 are their genuine signatures; and (ii) no event (including
without limitation, any act or omission on the part of the Master Servicer)
has occurred since the date of the good standing or similar certificate
referred to in paragraph 6(l) above which has affected the good standing of
the Master Servicer under the laws of the [State of ____________] [United
States].
(n) You shall have received from ___________________________, counsel
for the Master Servicer, a favorable opinion, dated the Closing Date, in
form and substance satisfactory to you and counsel for the Underwriters,
addressing such matters as you and such counsel may reasonably require for
the purpose of enabling you and such counsel to pass upon the issuance and
sale of the Underwritten Certificates as herein contemplated and related
proceedings;
(o) You shall have received with respect to the Special Servicer a good
standing or similar certificate from the Secretary of State of the state of
its organization
-19-
or, if not applicable, an appropriate federal official, dated not earlier
than 30 days prior to the Closing Date;
(p) You shall have received from the Secretary or an assistant
secretary of the Special Servicer, 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 Special Servicer,
signed the Pooling and Servicing Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated 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 are their genuine signatures; and (ii) no event (including
without limitation, any act or omission on the part of the Special
Servicer) has occurred since the date of the good standing or similar
certificate referred to in paragraph 6(o) above which has affected the good
standing of the Special Servicer under the laws of the [State of
____________] [United States].
(q) You shall have received from ___________________________, counsel
for the Special Servicer, a favorable opinion, dated the Closing Date, in
form and substance satisfactory to you and counsel for the Underwriters,
addressing such matters as you and such counsel may reasonably require for
the purpose of enabling you and such counsel to pass upon the issuance and
sale of the Underwritten Certificates as herein contemplated and related
proceedings;
(r) You shall have received from the Mortgage Loan Seller and its
officers all such certificates as may be required to be delivered thereby
under the Mortgage Loan Purchase Agreement;
(s) You shall have received from _______________________, counsel for
the Mortgage Loan Seller, written confirmation that the Underwriters may
rely, as of the date rendered, on any opinion or opinions of such counsel
required to be delivered under the Mortgage Loan Purchase Agreement or by
the Rating Agency as if addressed to the Underwriters; and
(t) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto, including, without
limitation, the Pooling and Servicing Agreement and the Mortgage Loan
Purchase Agreement, shall be satisfactory in form and substance to you and
counsel for the Underwriters, and you and such counsel shall have received
such additional information, certificates and documents as you or they may
have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
-20-
form and substance to you and counsel for the Underwriters, this Agreement and
all obligations of the Underwriters hereunder may be cancelled at, or at any
time prior to, the Closing Date by you. Notice of such cancellation shall be
given to the Company in writing, or by telephone or telegraph confirmed in
writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally, upon demand, for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Underwritten Certificates.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Basic Prospectus, any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of 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 foregoing indemnity with respect to the Base Prospectus or any
Preliminary Prospectus Supplement shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting claims giving rise to any
such losses, claims, damages, expenses or liabilities purchased
Underwritten Certificates if such untrue statement or omission or
alleged untrue statement or omission made in the Base Prospectus or
such Preliminary Prospectus is eliminated or remedied in the Prospectus
and, if required by law, a copy of the Prospectus shall not have been
furnished to such person at or prior to the written confirmation of the
sale of such Certificates to such person;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in
-21-
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Underwriter or, if more than one Underwriter is involved, by the
Representative), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or in the Basic Prospectus, any
Preliminary Prospectus Supplement or the Prospectus Supplement (or any
amendment or supplement thereto).
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or in the Basic
Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any
amendment thereto) or in the Basic Prospectus, such Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. In no event shall the indemnifying party or
parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from its or their own counsel for
all
-22-
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and the Underwriters, as incurred, in such proportions
that each Underwriter is responsible for that portion represented by the
percentage that such Underwriter's share of the underwriting discount and
commissions pertaining to the Underwritten Certificates bears to the aggregate
of the initial public offering prices of the Underwritten Certificates and the
Company is responsible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
10. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally (in the respective proportions which the portion of the Underwritten
Certificates set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Underwritten Certificates set forth opposite the names of
all the remaining Underwriters) to purchase the Underwritten Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the amount of Underwritten
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Underwritten
Certificates set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Underwritten Certificates, and if such nondefaulting
Underwriters do not purchase all of the Underwritten Certificates, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company, except as provided in Section 11. In the event of a default by any
Underwriter as set forth in this Section 10, the Closing Date for the
Underwritten Certificates shall be postponed for such period, not exceeding ten
business days, as you shall determine in order that the required changes in the
Registration Statement and the Prospectus Supplement or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to
-23-
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
11. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9, and shall survive delivery of the
Underwritten Certificates to the Underwriters.
12. Termination of Agreement.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the reasonable judgment of the
Underwriters, impracticable to market the Underwritten Certificates or to
enforce contracts for the sale of the Underwritten Certificates, or (iii)
if trading generally on the New York Stock Exchange has been suspended, or
if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party,
except as provided in Section 11.
13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to you at ________________ , attention: _________________; and notices
to the Company shall be directed to it at First Union Commercial Mortgage
Securities, Inc., ______________________ , attention of President; or, in either
case, such other address as may hereafter be furnished by either the
Representative or the Company to the other such party in writing.
14. Parties. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 8 and
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9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Company and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Certificates
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
15. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. 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.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC.
By:_____________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
By:_____________________________
Name:
Title:
For itself and the other Underwriters named in Schedule II to the
foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated _______________________, 199_:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 33- __________ filed by the Company on Form S-3 and
declared effective on _______, 199_ . The term "Basic Prospectus" refers to the
form of prospectus in the Registration Statement or such later form as most
recently filed by the Company pursuant to Rule 424(b) under the Securities Act
of 1933, as amended. The term "Prospectus Supplement" refers to the supplement
dated _____________, 199_ to the Basic Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement (the
"Underwritten Certificates").
Mortgage Pool:
Approximately commercial mortgage loans, having an aggregate principal
balance, after giving effect to payments of principal due on or before
__________, 199_ (the "Cut-off Date"), of approximately $________________ (the
"Initial Pool Balance"), and otherwise complying in all material respects with
the description thereof set forth in the Prospectus Supplement.
Title, Purchase Price and Description of Underwritten Certificates:
First Union Commercial Mortgage Securities, Inc., [Commercial Mortgage
Pass-Through Certificates, Series 1995-CMBS-1, Class [ ] and Class [ ]].
Initial Pass- Purchase
Aggregate Certificate Through Price
Designation Principal Balance Rate Rating Percentage
----------- --------------------- ------- ------ ----------
[Class [ ]] ___________ [Variable(1)] ____(2) ___%(3)
[Class [ ]] ___________ [Variable(1)] ____(2) ___%(3)
--------------------
[(1) The Pass-Through Rates applicable to the Class [ ] and
Class [ ] Certificates for the initial Distribution Date will be ___% and
___% per annum, respectively. The Pass-Through Rates applicable to the
Class [ ] and Class [ ] Certificates for each subsequent Distribution Date
will be calculated as described in the Prospectus Supplement under the
heading "Description of the Certificates -- Distributions -- Pass-Through
Rates".]
(2) [Specify rating agency or agencies.]
(3) There shall be added to the purchase price for each Class of Underwritten
Certificates accrued interest, if any, at the initial Pass-Through Rate for
such Class from [__________________, in the case of the Class [ ]
Certificates, and the Cut-off Date, in the case of the Class [ ]
Certificates,] up to, but not including, the Closing Date.
Credit Support and Other Terms and Conditions of the Underwritten Certificates:
As described in the Prospectus Supplement.
Closing Time, Date and Location: [10:00 a.m. (New York City time) on
_______________, 199_ at the offices of
_________________________________________________; except that delivery of the
Class [ ] Certificates shall be made through the facilities of The Depository
Trust Company.]
Initial Public Offering Price: [The Underwritten Certificates will be offered to
the public in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.]
SCHEDULE II
-----------
Underwriting Agreement dated ________, 199_
Approximate Aggregate
Principal Amount of
Certificates to be
Underwriters Class Purchased
------------ ----- ---------------------
