COMMERCIAL MORTGAGE ACCEPTANCE CORP.
(a Missouri corporation)
UNDERWRITING AGREEMENT
$2,558,779,000 (Approximate)
Commercial Mortgage Pass-Through Certificates, Series 1998-C2
September 29, 1998
TABLE OF CONTENTS
1. Representations and Warranties..........................................3
(a) Representations and Warranties by the Company.......................3
(i) Compliance with Registration Requirements..................3
(ii) Incorporated Documents.....................................4
(iii) No Material Adverse Change in Business.....................4
(iv) Good Standing of the Company...............................4
(v) Authorization of Agreement.................................4
(vi) Authorization of Other Agreements..........................4
(vii) Description of the Pooling and Servicing
Agreement...............................................5
(viii) Description of the Certificates............................5
(ix) Absence of Defaults and Conflicts..........................5
(x) Absence of Labor Dispute...................................6
(xi) Absence of Proceedings.....................................6
(xii) Accuracy of Exhibits.......................................7
(xiii) Possession of Intellectual Property........................7
(xiv) Absence of Further Requirements............................7
(xv) Possession of Licenses and Permits.........................7
(xvi) Tax Returns................................................8
(xvii) Investment Company Act.....................................8
(xviii) Environmental Laws.........................................8
(xix) No Liens...................................................9
(xx) Sale of Mortgage Loans.....................................9
(xxi) Ratings....................................................9
(xxii) Taxes.....................................................10
(b) Officer's Certificates.............................................10
2. Sale and Delivery to the Underwriters; Closing..........................10
(a) Certificates........................................................10
(b) Payment.............................................................10
(c) Denominations; Registration.........................................10
3. Covenants of the Company...............................................11
(a) Compliance with Securities Regulations and Commission Requests......11
(b) Filing of Amendments................................................11
(c) Delivery of Registration Statements.................................11
(d) Delivery of Prospectuses............................................12
(e) Continued Compliance with Securities Laws...........................12
(f) Blue Sky Qualifications.............................................12
(g) Reporting Requirements..............................................13
(h) Rating of Certificates..............................................13
(i) DTC 13
(j) Restriction on Sale of Securities...................................13
4. Payment, of Expenses...................................................13
(a) Expenses............................................................13
(b) Termination of Agreement............................................14
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5. Conditions of Underwriters' Obligations................................14
(a) Effectiveness of Registration Statement.............................14
(b) Opinion of Counsel for the Master Servicer and the
Special Servicer..................................................14
(c) Opinion of Counsel for the Underwriters.............................14
(d) Officers' Certificate of the Company................................15
(e) Officers' Certificates of the Master Servicer and the
Special Servicer..................................................15
(f) Accountant's Comfort Letter.........................................15
(g) Bring-down Comfort Letter...........................................15
(h) Maintenance of Rating...............................................15
(i) Underwriter Opinion of Counsel for Trustee..........................16
(j) Opinion of Tax and ERISA Counsel....................................16
(k) Opinion of Counsel for the Company..................................16
(l) Additional Documents................................................16
(m) Termination of Agreement............................................16
6. Indemnification.........................................................17
(a) Indemnification of Underwriters......................................17
(b) Indemnification of the Company, Directors and Officers...............18
(c) Actions against Parties; Notification................................19
(d) Settlement without Consent if Failure to Reimburse...................20
7. Contribution............................................................21
8. Representations, Warranties and Agreements to Survive Delivery..........22
9. Termination of Agreement................................................22
(a) Termination; General.................................................22
(b) Liabilities..........................................................23
10. Notices................................................................23
11. Parties................................................................23
12. GOVERNING LAW AND TIME.................................................24
13. Effect of Headings.....................................................24
14. Miscellaneous..........................................................24
ii
$2,558,779,000 (Approximate)
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
(a Missouri corporation)
Mortgage Pass-Through Certificates, Series 1998-C2
UNDERWRITING AGREEMENT
September 29, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
GREENWICH NATWEST
Greenwich NatWest Limited,
as Agent for
National Westminster Bank, Plc
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Commercial Mortgage Acceptance Corp., a Missouri corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and Greenwich NatWest Limited ("GNL"), as agent
for National Westminster Bank, Plc, (GNL and ▇▇▇▇▇▇▇ ▇▇▇▇▇, each an
"Underwriter" and, together, the "Underwriters"), with respect to the issue and
sale by the Company and the purchase by each Underwriter of the initial
certificate balance set forth in Schedule A hereto of $2,558,779,000
(Approximate) aggregate initial certificate balance of the Company's Commercial
Mortgage Pass-Through Certificates, Series 1998-C2 (the "Certificates"). The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Company and consisting primarily of a
segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans") to be purchased from ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital
Inc., Midland Loan Services, Inc. ("Midland") and Greenwich Capital Financial
Products, Inc., ("GCFP") (collectively, the "Mortgage Loan Sellers"). The
Certificates are to be issued pursuant to a pooling and servicing agreement,
dated as of September 1, 1998 (the "Pooling and Servicing Agreement"), among the
Company as depositor, Norwest Bank Minnesota, National Association, as trustee
(the "Trustee") and Midland Loan Services, Inc. as master servicer and special
servicer (the "Master Servicer" and the "Special Servicer"). Certificates issued
in book-entry form will be issued to Cede & Co. as nominee of The Depository
Trust
Company ("DTC") pursuant to a letter agreement, to be dated as of the Closing
Time (as defined in Section 2(b)) (the "DTC Agreement"), among the Depositor,
the Trustee and DTC.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (File No. 333-60749)
relating to the Certificates, and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"), and has filed, and proposes to file, such amendments thereto as may have
been required to the date hereof and as shall be required to the effective date
thereof pursuant to the 1933 Act and the rules of the Commission thereunder (the
"1933 Act Regulations"). Such registration statement, as amended at the time
when each becomes effective under the 1933 Act and at the Closing Time defined
below, is referred to herein as the "Registration Statement". The Company
proposes to file with the Commission pursuant to Rule 424(b)(5) under the 1933
Regulations a supplement (the "Prospectus Supplement") to the form of prospectus
(as may be amended in connection with such Prospectus Supplement, the "Basic
Prospectus"; the Basic Prospectus, together with the Prospectus Supplement, the
"Prospectus"). Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) or prior to the effective date of the Registration
Statement, pursuant to Rule 402(a) or 424(a) is hereinafter called a
"preliminary prospectus".
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
2
1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. At the time
the Registration Statement became effective and at the Closing Time, the
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the Trust Indenture Act of 1939, as
amended (the "1939 Act") and the rules and regulations of the Commission
thereunder (the "1939 Act Regulations"), and did not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will 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. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing (including electronic media) by the Underwriters
expressly for use in the Registration Statement or Prospectus.
The Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant to
Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and the Prospectus delivered to
each Underwriter for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
3
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances in which they were made.
(iii) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein, (A)
there has been no material adverse change in the financial condition,
earnings, business affairs or business prospects of the Company (a
"Material Adverse Effect"), whether or not arising in the ordinary course
of business and (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are
material with respect to the Company.
(iv) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Missouri and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(v) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(vi) Authorization of Other Agreements. Each of the Pooling
and Servicing Agreement, the Mortgage Loan Purchase Agreements and this
Agreement has been duly authorized and, at the Closing Time, will have
been duly executed and delivered by the Company and will each constitute a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms, subject
4
(i) to applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally, (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (iii) as to
enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(vii) Description of the Pooling and Servicing Agreement. The
description of the Pooling and Servicing Agreement in the Prospectus
conforms in all material respects with the terms thereof. At the Closing
Time, the Pooling and Servicing Agreement will conform in all material
respects to the description thereof contained in the Prospectus.
(viii) Description of the Certificates. The Certificates have
been duly authorized by the Company for issuance and sale pursuant to this
Agreement and the Pooling and Servicing Agreement (or will have been so
authorized prior to the issuance of the Certificates), and the
Certificates and the Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Grantor Trust, Class R-I, Class R-II and Class R-III Certificates
when duly authorized, executed, issued, authenticated and delivered
pursuant to the provisions of this Agreement, the Certificate Purchase
Agreement (the "Certificate Purchase Agreement") of even date herewith
between the Company and the Underwriters, and the Pooling and Servicing
Agreement against payment of the consideration therefor in accordance with
this Agreement and the Certificate Purchase Agreement, will be validly
issued and outstanding and the holders thereof shall be entitled to the
benefits of the Pooling and Servicing Agreement, except as the
enforceability thereof may be limited by the effect of (a) bankruptcy,
reorganization insolvency, moratorium or other similar laws effecting
creditors' rights generally and (b) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law). The description of the Certificates in the Prospectus conforms or
will conform in all material respects with the terms thereof and will be
in substantially the respective forms to be filed on Form 8-K within 15
days after the Closing Time and incorporated by reference, as the case may
be, as exhibits to the Registration Statement.
(ix) Absence of Defaults and Conflicts. The Company is not in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound, or
5
to which any of the property or assets of the Company is subject
(collectively, "Agreements and Instruments") except for such defaults that
would not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and any other agreement or instrument
entered into or issued or to be entered into or issued by the Company in
connection with the transactions of the Company contemplated hereby or
thereby or in the Registration Statement and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Certificates) and compliance by
the Company with its obligations hereunder have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or a Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, the
Agreements and Instruments except for such conflicts, breaches, defaults,
Repayment Events or liens, charges or encumbrances that, singly or in the
aggregate, would not result in a Material Adverse Effect, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its assets or properties that, singly or in the aggregate, would have a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or its affiliates.
(x) Absence of Labor Dispute No labor dispute with the
employees of the Company exists or, to the knowledge of the Company, is
imminent.
(xi) Absence of Proceedings. There is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the properties or assets of the Company
taken as a whole or the consummation of this Agreement or the performance
by the Company of its obligations hereunder. The aggregate of all pending
legal or governmental proceedings to which the Company is a party or of
which any of its property or assets
6
is the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, would
not reasonably be expected to result in a Material Adverse Effect.
(xii) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required, except for any documents permitted to be
filed on Form 8-K within 15 days after the Closing Time.
(xiii) Possession of Intellectual Property. The Company owns
or possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property"), if any, necessary to carry on the business now
operated by it, and the Company has not received any notice or is not
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Certificates hereunder or the consummation of the transactions of
the Company contemplated by this Agreement, except such as may be required
under the 1933 Act Regulations, the 1939 Act Regulations or state
securities or blue sky laws.
(xv) Possession of Licenses and Permits. The Company possesses
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to enter
into, and perform its obligations under this Agreement and to conduct the
business now operated by it; the Company is in compliance with the terms
and conditions of all such Governmental Licenses, except where
7
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and the Company has
not received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xvi) Tax Returns. The Company has filed all federal, state,
local and foreign tax returns that are required to be filed or has duly
requested extensions thereof and has paid all taxes required to be paid by
it and any related assessments, fines or penalties, except for any such
tax, assessment, fine or penalty that is being contested in good faith and
by appropriate proceedings; and adequate charges, accruals and reserves
have been provided for in respect of all federal, state, local and foreign
taxes for all periods as to which the tax liability of the Company has not
been finally determined or remains open to examination by applicable
taxing authorities.
(xvii) Investment Company Act. The Company is not and upon the
issuance and sale of the Certificates as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act"). The Trust Fund is not required
to be registered as an "investment company" under the 1940 Act.
(xviii) Environmental Laws. Except as described in the
Registration Statement and except such matters as would not, singly or in
the aggregate, result in a Material Adverse Effect, (A) the Company is not
in violation of any federal, state, local or foreign statute, law, rule
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"),
8
(B) the Company has all permits, authorizations and approvals required
under any applicable Environmental Laws and is in compliance with its
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company and (D) there are no
events or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company relating to Hazardous Materials or Environmental
Laws.
(xix) No Liens. At the time of the execution and delivery of
the Pooling and Servicing Agreement, the Company (A) will convey to the
Trustee, or cause to be conveyed to the Trustee, all of its right, title
and interest in and to the Mortgage Loans, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens") granted by or imposed upon the Company,
(B) will not have assigned to any person any of its right, title or
interest in such Mortgage Loans or in the Pooling and Servicing Agreement
or the Certificates, and (C) will have the power and authority to transfer
such Mortgage Loans to the Trustee and to sell the Certificates to the
Underwriters, and upon delivery to the Underwriters of the Certificates
pursuant hereto, each Underwriter will have good title to the Certificates
purchased by such Underwriter, in each case free of Liens (excluding Liens
granted by or imposed upon such Underwriter by Persons other than the
Company or any Affiliate thereof).
(xx) Sale of Mortgage Loans. Under generally accepted
accounting principles ("GAAP") and for federal income tax purposes, the
Company will report the transfer of the Mortgage Loans to the Trustee in
exchange for the Certificates and the sale of the Certificates to the
Underwriters pursuant to this Agreement as a sale of the interests in the
Mortgage Loans evidenced by the Certificates. The consideration received
by the Company upon the sale of the Certificates to the Underwriters will
constitute reasonably equivalent value and fair consideration for the
Certificates. The Company will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Certificates to the
Underwriters. The Company is not selling the Certificates to the
Underwriters with any intent to hinder, delay or defraud any of the
creditors of the Company.
(xxi) Ratings. At the Closing Time, the respective classes of
Certificates shall have been assigned ratings no lower than those set
forth in Schedule A hereto
9
by the nationally recognized statistical rating organizations identified
in Schedule A hereto (the "Rating Agencies").
(xxii) Taxes. Any taxes, fees and other governmental charges
in connection with the execution, delivery and issuance of this Agreement,
the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements
and the Certificates payable by the Company (other than income taxes) have
been paid or will be paid at or prior to the
Closing Time.
(b) Officer's Certificates. Any certificate signed by any officer
of the Company and delivered to the Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to the
Underwriters as to the matters covered thereby.
2. Sale and Delivery to the Underwriters; Closing.
(a) Certificates. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, and each Underwriter
agrees to purchase from the Company, at the purchase price set forth in Schedule
A, the aggregate initial certificate balance of Certificates set forth in
Schedule A opposite the name of such Underwriter.
(b) Payment. Payment of the purchase price for, and delivery of
the Certificates shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ or at
such other place as shall be agreed upon by the Underwriters and the Company, at
10:00 A.M. on or about September 29, 1998 or such other time not later than ten
business days after such date as shall be agreed upon by the Underwriters and
the Company (such time and date of payment and delivery being herein called the
"Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
each Underwriter for the account of such Underwriter of the Certificates to be
purchased by them. The Certificates shall be registered in the name of Cede &
Co., pursuant to the DTC Agreement and shall be made available for examination
and packaging by the Underwriters in the City of New York not later than 10:00
A.M. on the last business day prior to the Closing Time.
(c) Denominations; Registration. The Certificates shall be in such
denominations as the Underwriters may request in writing at least one full
business day before the Closing Time.
10
3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company will notify each Underwriter immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus that relates to the offering of the Certificates shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any other order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Certificates for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424(b)
and will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give each Underwriter
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment, supplement or revision to either the Basic
Prospectus or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise (other than reports to be filed pursuant to the 1934 Act), will
furnish each Underwriter with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which either Underwriter or counsel for the
Underwriters shall object.
(c) Delivery of Registration Statements. Upon request the Company
will deliver to each Underwriter and counsel for the Underwriters, without
charge, a signed copy of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and a conformed copy of all consents and certificates of
experts. The copies of the Registration Statement and each amendment thereto
furnished to each Underwriter will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
11
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus, if
any, as each such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as each
such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to each Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit
the completion of the distribution of the Certificates as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Certificates, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to each Underwriter such number of copies of such amendment or
supplement as each such Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with each Underwriter, to qualify the Certificates for
offering and sale under the applicable securities laws of such states and other
jurisdictions as each such Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
12
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will also supply each Underwriter with such information as
is necessary for the determination of the legality of the Certificates for
investment under the laws of such jurisdictions as each such Underwriter may
request.
(g) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(h) Rating of Certificates. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Service, a division of The
McGraw Hill Companies, Inc., ("S&P"), and Duff & ▇▇▇▇▇▇ Rating Co. ("DCR") to
provide their respective credit ratings of the Certificates as described in the
Prospectus.
(i) DTC. The Company will cooperate with each Underwriter and
use its best efforts to permit the Certificates to be eligible for clearance
and settlement through the facilities of DTC in the U.S. and Cedel Bank S.A.
("CEDEL") and The Euroclear System ("Euroclear") as participants of DTC in
Europe.
(j) Restriction on Sale of Securities. During the period from the
date hereof to the Closing Time, the Company will not, without the prior written
consent of the Underwriters, directly or indirectly, issue, sell, offer or agree
to sell, grant any option for the sale of, or otherwise dispose of, any other
mortgage-related securities of the Company or securities of the Company that are
convertible into, or exchangeable for, the Certificates or such other
securities.
4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Registration Statement (including
any schedules or exhibits and any document incorporated therein by reference)
originally filed and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to each Underwriter of this Agreement, the
Pooling and Servicing Agreement and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Certificates,
(iii) the preparation, issuance and delivery of the Certificates to each
Underwriter, including any charges of DTC in connection therewith, (iv) the fees
and disbursements of the Company's accountants and other advisors, (v) the
qualification of the
13
Certificates under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to each Underwriter of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto, (vii) the fees and
expenses of the Trustee, the Master Servicer and the Special Servicer, including
the fees and disbursements of counsel for the Trustee, the Master Servicer and
the Special Servicer in connection with the Pooling and Servicing Agreement and
the Certificates and (viii) any fees payable in connection with the rating of
the Certificates.
(b) Termination of Agreement. If this Agreement is terminated by
either Underwriter in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse such Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriter.
5. Conditions of Underwriters' Obligations. The obligations of
each Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company delivered pursuant to the provisions hereof, to
the performance by the Company of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. At the Closing Time
no stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) Opinion of Counsel for the Master Servicer and the Special
Servicer. At the Closing Time, each Underwriter shall have received the
favorable opinion, dated as of the Closing Time, of counsel for the Master
Servicer and the Special Servicer, in form and substance satisfactory to counsel
for the Underwriters.
(c) Opinion of Counsel for the Underwriters. At the Closing Time,
each Underwriter shall have received the favorable opinions, dated as of the
Closing Time, of counsel for the Underwriters. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Underwriters and
certificates of public officials.
14
(d) Officers' Certificate of the Company. At the Closing Time,
there shall not have been, since the date hereof or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the financial condition, earnings, business affairs or business prospects of
the Company, whether or not arising in the ordinary course of business, and each
Underwriter shall have received a certificate of the President or a Vice
President of the Company dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct in all material respects
with the same force and effect as though expressly made at and as of the Closing
Time, (iii) each has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied in all
material respects at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to the
Company's knowledge, are contemplated by the Commission.
(e) Officers' Certificates of the Master Servicer and the Special
Servicer. At the Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the financial condition, earnings,
business affairs or business prospects of the Master Servicer and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and each Underwriter shall have received a
certificate of the President or a Vice President of the Master Servicer and the
Special Servicer, dated as of the Closing Time, to that effect.
(f) Accountant's Comfort Letter. At or prior to the time of the
execution of this Agreement, each Underwriter shall have received from each of
Ernst & Young LLP ("EY") and PriceWaterhouseCoopers, LLP ("PWC") a letter dated
such date, in form and substance satisfactory to each Underwriter, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to each Underwriter with respect to certain financial
information contained in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At the Closing Time, each
Underwriter shall have received from each of EY & PWC a letter, dated as of the
Closing Time, to the effect that it reaffirms the statements made in its letter
furnished pursuant to subsection (f) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Time.
(h) Maintenance of Rating. At the Closing Time, the
Certificates shall have received the ratings set forth in
15
Schedule A and the Company shall have delivered to each Underwriter a letter
dated the Closing Time, from each such rating agency, or other evidence
satisfactory to each Underwriter, confirming that the Certificates have such
ratings.
(i) Opinion of Counsel for Trustee. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Trustee, in form and substance satisfactory to counsel
for the Underwriters.
(j) Opinion of Tax and ERISA Counsel. At the Closing Time, each
Underwriter shall have received a favorable opinion, dated as of the Closing
Time, of tax and ERISA counsel to the Company with respect to the Certificates
(i) regarding the qualification of each of REMIC I, REMIC II and REMIC III (as
each such term is defined in the Pooling and Servicing Agreement) as a real
estate mortgage investment conduit within the meaning of Sections 860A through
860G of the Internal Revenue Code of 1986, as amended, and (ii) to the effect
that the statements in the Basic Prospectus and the Prospectus Supplement under
the headings "MATERIAL FEDERAL INCOME TAX CONSEQUENCES" and "ERISA
CONSIDERATIONS", to the extent that they constitute matters of State of New York
or federal law or legal conclusions with respect thereto, while not purporting
to discuss all possible consequences of investment in the Certificates described
therein, are correct in all material respects with respect to those consequences
or matters that are discussed therein.
(k) Opinion of Counsel for the Company. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters.
(l) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Certificates as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Certificates as herein contemplated
shall be satisfactory in form and substance to each Underwriter and counsel for
the Underwriters.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by either Underwriter by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in
16
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter, as the case may be, within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 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 any
preliminary prospectus or the Prospectus (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;
(ii) 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 Computational
Materials, ABS Term Sheets or Collateral Term Sheets distributed by such
Underwriter, unless such untrue statement or alleged untrue statement of a
material fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter expressly for use in the
Computational Materials, ABS Term Sheets or Collateral Term Sheets and the
untrue statement or alleged untrue statement did not derive from an
inaccuracy in the Seller-Provided Information used in the preparation of
such Computational Materials, ABS Term Sheets or Collateral Term Sheets;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iv) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel
17
chosen by such Underwriter), 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), (ii) or (iii) 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 (including information provided
in electronic format) furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided
further that the Company's agreement to indemnify and reimburse any Underwriter
(or any officer or director thereof or any person controlling such Underwriter)
under this Section 6 shall not apply to any loss, claim, damage, liability or
expense arising out of or relating to claims asserted by any person who
purchased any Registered Certificates pursuant to the Preliminary Prospectus
Supplement that are the subject of such claims if such person did not receive a
copy of the Prospectus Supplement concurrently with or prior to the settlement
of the sale of such Registered Certificates to such person in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained in such Preliminary
Prospectus Supplement which was the basis of any such claims, was corrected in
the Prospectus Supplement.
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter agrees to indemnify and hold harmless the Company, its directors and
its officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows (i) 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 any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information (including information provided in
electronic format) furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), and (ii)
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but
18
only with respect to untrue statements or alleged untrue statements made in the
Computational Materials, Collateral Term Sheets or ABS Term Sheets to the extent
that such untrue statement or alleged untrue statement of a material fact was
made in reliance upon and in conformity with Derived Information provided by
such Underwriter expressly for use in the Computational Materials, the ABS Term
Sheets or the Collateral Term Sheets and the untrue statements or alleged untrue
statements did not derive from an inaccuracy in the Seller-Provided Information
used in the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets.
For purposes of this Agreement, "Computational Materials" shall have the meaning
given such term in the No-Action Letter of May 20, 1994 issued by the Commission
to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated
and ▇▇▇▇▇▇ Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "▇▇▇▇▇▇/PSA
Letter"), and the requirements of the No-Action Letter of 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"), but shall
include only those Computational Materials that have been prepared or delivered
to prospective investors by such Underwriter. For purposes hereof, "ABS 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 or Collateral Term
Sheets that have been prepared or delivered to prospective investors by such
Underwriter. For purposes hereof, "Derived Information" means such portion, if
any, of the information delivered to the Company by such Underwriter for filing
with the Commission on Form 8-K and (i) is not contained in the Prospectus
without taking into account information incorporated therein by reference, and
(ii) does not constitute Seller-Provided Information. "Seller-Provided
Information" means any computer tape (or other information) furnished to such
Underwriter by or on behalf of the Company, including, but not limited to, any
information provided by any Mortgage Loan Seller expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In
19
the case of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Underwriters and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and the expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the related indemnified party, which consent shall not
be unreasonably withheld or delayed, 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 6 or Section 7 hereof by such indemnified party
(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. An indemnifying party shall not be liable
under any settlement 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 in writing, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof by an indemnified party which is
effected without the prior written consent of such indemnifying party, which
consent will not be unreasonably withheld or delayed.
(d) Settlement without Consent if Failure to Reimburse.
Notwithstanding anything to the contrary contained in Section 6(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(iii) effected without its written consent if
(i) such settlement is entered into more that 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 45 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
20
7. Contribution. If the indemnification provided for in Section 6
hereof is due in accordance with its terms but is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and such Underwriter on the
other hand from the offering and sale of the Certificates pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of such Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and
such Underwriter on the other hand in connection with the offering and sale of
the Certificates pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering and sale of
the Certificates pursuant to this Agreement (before deducting expenses) received
by the Company and the total underwriting discount received by such Underwriter,
in each case as set forth on Schedule A, bear to the aggregate initial purchase
price of the Certificates as set forth on Schedule A. The relative fault of the
Company on the one hand and such Underwriter on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by such
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and each Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. In the event that any expenses so
paid by the
21
indemnifying party are subsequently determined not be required to be borne by
the indemnifying party hereunder (whether in connection with indemnification
pursuant to Section 6 or contribution pursuant to this Section 7), the party
which received such payment shall promptly refund the amount so paid to the
party which made such payment.
Notwithstanding the provisions of this Section 7, each Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total purchase price for the Certificates underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls
each Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Underwriter
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. Each Underwriter's obligations to contribute
pursuant to this Section 7 is in proportion to the initial certificate balance
of Certificates set forth opposite its name in Schedule A hereto.
8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or 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 each Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Certificates
to each Underwriter.
9. Termination of Agreement.
(a) Termination; General. Either Underwriter may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the financial condition, earnings, business affairs
or business prospects of the Company or any of the Mortgage Loan Sellers,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any
22
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of such Underwriter,
impracticable to market the Certificates or to enforce contracts for the sale of
the Certificates, or (iii) if trading in any securities of the Company or any of
the Mortgage Loan Sellers has been suspended or limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or on the Nasdaq National Market has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
Section 9(a), such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
10. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given upon receipt if
mailed, delivered by courier or transmitted by any standard form of
telecommunication. Notices to ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be directed to ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Real Estate Investment Banking; notices to GNL
shall be directed to Greenwich Capital Markets, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a copy to the General
Counsel; and notices to the Company shall be directed to Commercial Mortgage
Acceptance Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President; or, as to any party, such other address as may hereafter
be furnished by such party to the others in writing.
11. Parties. This Agreement shall each inure to the benefit of and
be binding upon each Underwriter, 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 each Underwriter,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 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
23
sole and exclusive benefit of each Underwriter, 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 Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
13. Effect of Headings. The Section and other headings herein and
in the Table of Contents are for convenience of reference only and shall not
affect the construction hereof.
14. Miscellaneous. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
By: __________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ___________________________________
Name:
Title:
GREENWICH NATWEST LIMITED
By: ____________________________________
Name:
Title:
25
SCHEDULE A
Underwriting Agreement, dated September 29, 1998
Cut-off Date: September 1, 1998
Certificates: Commercial Mortgage Acceptance Corp.,
Commercial Mortgage Pass-Through
Certificates, Series 1998-C2
Percent of Percent of
Initial Initial
Certificate Certificate
Initial Balance to be Balance to Initial
Certificate Purchased by be Pass-
Class Balance of Merrill Purchased Through Purchase Rating
Designation Class ▇▇▇▇▇ by GNL Rate Price
----------- --------- --------- ----------- ------ -------- ----
A-1 515,016,000 75% 25% 5.80% 100.484375% ▇▇▇/▇▇▇
▇-▇ 837,749,000 75% 25% 6.03% 100.734375% ▇▇▇/▇▇▇
▇-▇ 671,128,000 75% 25% 6.04% 100.718750% AAA/AAA
X (4) 76% 24% 7.390625% AAA/AAAr
B 144,564,000 76% 24% 100.703125% AA/AA
C 173,477,000 76% 24% 100.468750% A/A
D 173,476,000 75% 25% 100.437500% BBB/BBB
E 43,369,000 77% 23% 100.015625% BBB-/BBB-
(1) Expressed as a percentage of the initial aggregate Certificate Balance of
the relevant Class of Certificates to be purchased. The purchase price for
each Class of the Certificates will include accrued interest at the
initial Pass-Through Rate therefor on the aggregate stated amount thereof
to be purchased from the Cut-Off Date to but not including the Closing
Date.
(2) By each of DCR and Standard & Poor's Rating Services, respectively.
(3) The Pass-Through Rates applicable to the Class B, Class C, Class D and
Class E Certificates will equal the Weighted Average Net Mortgage Rate
minus 0.97%, 0.78%, 0.34% and 0%, respectively.
(4) The Class X Certificates will not have a principal balance nor will they
entitle the holders thereof to receive distributions of principal, but
will entitle such holders to receive payments of interest equal to the
aggregate of the
interest accrued on the notional amount of each of its Components. The
initial notional amount is $2,891,276,720.
2