COMMERCIAL MORTGAGE ACCEPTANCE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES ________, CLASS A, CLASS B AND CLASS [ ]
UNDERWRITING AGREEMENT
_____________, ____
_____________, 19__
____________________________
____________________________
____________________________
Ladies and Gentlemen:
Commercial Mortgage Acceptance Corp., a Missouri corporation (the
"Company"), proposes to issue and sell, pursuant to the terms of this
Underwriting Agreement (this "Underwriting Agreement") to
_______________________, as underwriter (the "Underwriter"), the Commercial
Mortgage Acceptance Corp. Commercial Mortgage Pass-Through Certificates, Series
[___________], [insert offered Classes] (collectively, the "Offered Securities")
having the respective initial aggregate approximate Certificate Balances set
forth on Schedule I hereto, each Certificate evidencing an undivided beneficial
ownership interest in a separate trust fund (the "Trust Fund"), the property of
which is primarily comprised of a pool (the "Mortgage Pool") of [____
fixed-rate] mortgage loans and [____ variable rate] mortgage loans with original
terms to maturity of not more than [__________] years (the "Mortgage Loans"),
secured by first [or junior] liens on fee simple or leasehold interests in
commercial real estate properties, multifamily residential properties and/or
mixed residential/commercial properties (the "Mortgaged Properties"). The
Mortgaged Properties consist of [multifamily residential housing,] [nursing
homes,] [congregate care facilities,] [retail properties,] [office buildings,]
[self-storage facilities,] [light industrial/industrial properties,]
[warehouses,] [hotels,] [mobile home parks] and [mixed use properties].
The sale of the Offered Securities is to occur simultaneously with the
separate offering of Commercial Mortgage Acceptance Corp. Commercial Mortgage
Pass-Through Certificates, Series [________], [insert privately placed Classes],
[___], Class R and Class LR (the "Privately Placed Certificates"), which are
being issued pursuant to the Private Placement Memorandum, dated _________,
199__ (the "Memorandum") and sold to ______________________, as placement agent
(in such capacity, the "Placement Agent") pursuant to a Certificate Purchase
Agreement, dated __________, 199__ (the "Certificate Purchase Agreement"). The
Offered Securities and the Privately Placed Certificates are collectively
referred to herein as the Certificates.
The Trust Fund will be established pursuant to an agreement (the "Pooling
and Servicing Agreement") to be dated as of _________, 199_, by and among the
Company, as depositor, Midland Loan Services, Inc., as servicer (the "Master
Servicer"), [____________________, as special servicer (the "Special
Servicer"),] _________________, as trustee (the "Trustee"), and
_____________________, as fiscal agent (the "Fiscal Agent")].
The Mortgage Loans will be purchased by the Company from
___________________ (the "Mortgage Loan Seller"), a ___________ corporation,
pursuant to a Mortgage Loan Purchase and Sale Agreement to be dated as of
____________, 199_ (the "Mortgage Loan Purchase and Sale Agreement"),
among the Mortgage Loan Seller, [the Master Servicer] and the Company and will
be transferred to the Trustee, for the benefit of the Certificateholders, in
exchange for the Certificates.
[Insert Information regarding determination of Purchase
Price]
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
1. Offering by the Underwriter. Upon the execution of this Underwriting
Agreement and the authorization by the Underwriter of the release of the Offered
Securities, the Underwriter proposes to offer for sale to the public the Offered
Securities at the price and upon the terms set forth in the Final Prospectus (as
hereinafter defined).
2. Conditions of the Underwriter's Obligations. The obligation of the
Underwriter hereunder to purchase the Offered Securities 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 Closing Date, to the
accuracy of the statements of the Company, the Master Servicer [and the Special
Servicer], made in any certificate pursuant to the provisions hereof, to the
performance by the Company in all material respects of its obligations hereunder
and to the following additional conditions:
(a) All actions required to be taken and all filings required to be
made by or on behalf of the Company under the Securities Act of 1933, as
amended (the "1933 Act"), and the Securities Exchange Act of 1934, as
amended (the "1934 Act"), prior to the sale of the Offered Securities
shall have been duly taken or made.
(b) The Underwriter shall have received on the Closing Date an
Officer's Certificate of the Company, dated the Closing Date, to the
effect that: (i) no stop order suspending the effectiveness of the
Company's registration statement (Registration No. [333-_________]) (the
"Registration Statement") shall be in effect, (ii) no proceedings for such
purpose shall be pending before or threatened by the Securities and
Exchange Commission (the "Commission"), or by any authority administering
any state securities or "Blue Sky" laws, (iii) any requests for additional
information on the part of the Commission shall have been complied with to
the Underwriter's reasonable satisfaction, (iv) since the respective dates
as of which information is given in the Registration Statement, the
Prospectus, dated __________, 199_ (the "Prospectus") and the Prospectus
Supplement, dated ___________, 199_ (the "Prospectus Supplement"; together
with the Prospectus, the "Final Prospectus") and except as otherwise
stated therein, there shall have been no material adverse change in the
condition, financial or otherwise, earnings, affairs, regulatory situation
or business prospects of the Company, (v) there are no material actions,
suits or proceedings pending (or, to the best knowledge of the Company,
threatened) before any court or governmental agency, authority or body,
affecting the Company or the transactions contemplated by this
Underwriting Agreement and (vi) the Company is not in violation of its
Articles of Incorporation, as amended, or its by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, pooling and servicing agreement,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties may be bound, which
violations or defaults separately or in the aggregate would have a
material adverse effect on the Company.
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(c) Subsequent to the execution of this Underwriting Agreement, there
shall not have occurred any of the following: (i) if at or prior to the
Closing Date, trading in securities on the New York Stock Exchange, London
Stock Exchange or Tokyo Stock Exchange shall have been suspended or any
material limitation in trading in securities generally shall have been
established on such exchange, or a banking moratorium shall have been
declared by New York or United States authorities or (ii) if at or prior
to the Closing Date, there shall have been an outbreak of hostilities
between the United States and any foreign power, or of any other
insurrection or armed conflict involving the United States which results
in the declaration of a national emergency or war, and, in the reasonable
opinion of the Underwriter, makes it impracticable or inadvisable to offer
or sell the Offered Securities.
(d) The Underwriter shall have received written notification from
each of [insert Rating Agencies rating the transaction] to the effect that
the Offered Securities have been rated no lower than the required ratings
set forth in Schedule I hereto, and as of the Closing Date, such rating or
ratings shall not have been rescinded and there shall not have been any
downgrading, or public notification of a possible downgrading, or public
notification of a possible change without indication of direction.
(e) The Offered Securities, the Mortgage Loan Purchase and Sale
Agreement, the Pooling and Servicing Agreement and this Underwriting
Agreement shall have been duly authorized, executed and delivered by the
respective parties thereto and shall be in full force and effect.
(f) The Company shall have delivered to the Underwriter an Officer's
Certificate of the Company, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Prospectus
Supplement and this Agreement and 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, (ii) the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date and (iii) nothing has come to
the attention of the signer that would lead the signer to believe that the
Prospectus Supplement contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that no
such representation or warranty shall be required as to statements
contained in or omitted from the Prospectus Supplement in reliance upon
and in conformity with information furnished in writing (including
electronic media) to the Company by the Underwriter specifically for use
in the Prospectus Supplement.
(g) The Master Servicer shall have delivered to the Underwriter an
Officer's Certificate, dated the Closing Date, to the effect that (i) the
signer of such certificate has carefully examined the Prospectus
Supplement and that nothing has come to the attention of the signer that
would lead the signer to believe that the statements in the Prospectus
Supplement relating to the Master Servicer contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading and (ii)
all of the Master Servicer's representations and warranties contained in
the Pooling and Servicing Agreement are true and correct as if made on the
Closing Date.
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(h) [The Special Servicer shall have delivered to the Underwriter an
Officer's Certificate of the Special Servicer, dated the Closing Date, to
the effect that the signer of such certificate has carefully examined the
Prospectus Supplement and that nothing has come to the attention of the
signer that would lead the signer to believe that the statements in the
Prospectus Supplement relating to the Special Servicer contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that no such representation or warranty shall be
required as to statements contained in or omitted from the Prospectus
Supplement in reliance upon and in conformity with information furnished
in writing to the Company by the Underwriter specifically for use in the
Prospectus Supplement and any amendment or supplement thereto.]
(i) The Underwriter shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., counsel to the Company, a favorable opinion, dated the Closing
Date, and satisfactory in form and substance to counsel for the
Underwriter. With respect to such opinion, such counsel (a) 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 Underwriting Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase and Sale Agreement, (b) may
assume the due authorization, execution and delivery of the instruments
and documents referred to therein by the parties thereto other than the
Company and the Master Servicer and (c) may render such opinion only as to
the federal laws of the United States of America and the laws of the State
of ____________.
(j) The Underwriter shall have received from
________________________, counsel to the Underwriter, such opinion, dated
the Closing Date, with respect to the issuance and sale of the Offered
Securities, the Pooling and Servicing Agreement, the Mortgage Loan
Purchase and Sale Agreement, this Underwriting Agreement, the Final
Prospectus and other related matters as the Underwriter may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(k) The Underwriter shall have received from ______________________,
certified public accountants, a letter dated the date hereof and
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, to the effect that such accountants have performed certain
specified procedures as a result of which they confirmed certain
information of an accounting, financial or statistical nature set forth in
the Final Prospectus.
(l) The Underwriter shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., counsel to the Master Servicer, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter, to the effect that the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the Master
Servicer and constitutes the legal, valid, binding and enforceable
agreement of the Master Servicer, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by the
Underwriter and the Master Servicer. With respect to such opinion, such
counsel (a) may express its reliance as to factual matters on the
representations and warranties made
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by, and on certificates or other documents furnished by officers of the
parties to the Pooling and Servicing Agreement, (b) may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Master Servicer
and (c) may render such opinion only as to the laws of the State of
_____________ and the federal laws of the United States of America.
(m) [The Underwriter shall have received from
_______________________, counsel to the Special Servicer, a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter, to the effect that the
Pooling and Servicing Agreement has been duly authorized, executed and
delivered by the Special Servicer and constitutes the legal, valid,
binding and enforceable agreement of the Special Servicer, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights in general and by general
principles of equity regardless of whether enforcement is considered in a
proceeding in equity or at law, and as to such other matters as may be
agreed upon by the Underwriter and the Special Servicer. With respect to
such opinion, such counsel (a) 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 the Pooling and
Servicing Agreement, (b) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the
parties thereto other than the Special Servicer and (c) may render such
opinion only as to the laws of the State of ____________ and the federal
laws of the United States of America.]
(n) The Underwriter shall have received from
________________________, counsel to the Mortgage Loan Seller, a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter, to the effect that the
Mortgage Loan Purchase and Sale Agreement has been duly authorized,
executed and delivered by the Mortgage Loan Seller and constitutes the
legal, valid, binding and enforceable agreement of the Mortgage Loan
Seller, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights in general and by general principles of equity regardless of
whether enforcement is considered in a proceeding in equity or at law, and
as to such other matters as may be agreed upon by the Underwriter and the
Mortgage Loan Seller. With respect to such opinion, such counsel (a) 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 the Pooling and Servicing Agreement and the
Mortgage Loan Purchase and Sale Agreement, (b) may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Mortgage Loan
Seller and (c) may render such opinion only as to the laws of the State of
___________ and the federal laws of the United States of America.
(o) The Underwriter shall have received from [_________________],
counsel to the Trustee, a favorable opinion, dated the Closing Date, in
form and substance satisfactory to the Underwriter and counsel for the
Underwriter, to the effect that the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Trustee and constitutes
the legal, valid, binding and enforceable agreement of the Trustee,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights in general and
by general principles of equity regardless of whether enforcement is
considered in a
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proceeding in equity or at law, and as to such other matters as may be
agreed upon by the Underwriter and the Trustee.
(p) [The Underwriter shall have received from [_________________],
counsel to the Fiscal Agent, a favorable opinion dated the Closing Date, in
form and substance satisfactory to the Underwriter and counsel for the
Underwriter, to the effect that the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Fiscal Agent and
constitutes the legal, valid, binding and enforceable agreement of the
Fiscal Agent, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights in general and by general principles of equity, regardless of
whether enforcement is considered in a proceeding in equity or at law, and
as to such other matters as may be agreed upon by the Underwriter and the
Fiscal Agent.]
(q) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory
in form and substance to the Underwriter and counsel for the Underwriter,
and the Underwriter and such counsel shall have received such information,
certificates and documents as the Underwriter or such counsel may have
reasonably requested.
(r) The Underwriter shall have received a copy of the Letter of
Representations of the Company to The Depository Trust Company with
respect to the Offered Securities.
(s) All conditions to the obligation of the Placement Agent pursuant
to Section 4 of the Certificate Purchase Agreement shall have been
satisfied.
(t) The Company shall have furnished such further information,
certificates, documents and opinions as the Underwriter may reasonably
request.
If any of the conditions specified in this Section 2 shall not have been
fulfilled in all material respects when and as provided in this Underwriting
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 Underwriting Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriter and counsel for the
Underwriter, this Underwriting Agreement and all obligations of the Underwriter
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriter.
3. Covenants of the Company. In further consideration of the agreements of
the Underwriter contained in this Underwriting Agreement, the Company covenants
as follows:
(a) The Company shall furnish the Underwriter, without charge, copies
of the Registration Statement and any amendments thereto including
exhibits and as many copies of the Final Prospectus and any supplements
and amendments thereto as the Underwriter may from time to time reasonably
request.
(b) The Company will not file any amendment to the Registration
Statement or any supplement to the Prospectus of which the Underwriter
shall not previously have been advised and furnished with a copy a
reasonable time prior to the proposed filing or to which the Underwriter
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shall have reasonably objected. The Company will use its best efforts to
cause any post-effective amendment to the Registration Statement to become
effective as promptly as possible. During the time when a prospectus is
required to be delivered under the 1933 Act, the Company will comply so
far as it is able with all requirements imposed upon it by the 1933 Act
and the rules and regulations thereunder to the extent necessary to permit
the continuance of sales or of dealings in the Offered Securities in
accordance with the provisions hereof and of the Final Prospectus, and the
Company will prepare and file with the Commission, promptly upon request
by the Underwriter, any amendments to the Registration Statement or
amendments or supplements to the Prospectus which may be necessary or
advisable in connection with the distribution of the Offered Securities by
the Underwriter, and will use its best efforts to cause the same to become
effective as promptly as possible. The Company will advise the
Underwriter, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement or any amended Registration
Statement has become effective or any amendment or supplement to the Final
Prospectus or any amended Prospectus has been filed. The Company will
advise the Underwriter, promptly after it receives notice or obtains
knowledge thereof, of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any preliminary prospectus supplement
or the Final Prospectus, or the suspension of the qualification of the
Offered Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose, or of
any request made by the Commission for the amending or supplementing of
the Registration Statement or the Final Prospectus or for additional
information, and the Company will use its best efforts to prevent the
issuance of any such stop order or any order suspending any such
qualification, and if any such order is issued, to obtain the lifting
thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Final Prospectus would include any untrue
statement of a material fact, or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it is necessary for any other reason to amend or supplement the Final
Prospectus to comply with the 1933 Act, to promptly notify the Underwriter
thereof and upon the Underwriter's request to prepare and file with the
Commission, at the Company's own expense, an amendment or supplement which
will correct such statement or omission or any amendment which will effect
such compliance.
(d) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Offered Securities pursuant
to this Underwriting Agreement, the Company will file, on a timely and
complete basis, all documents that are required to be filed by the Company
with the Commission pursuant to Sections 13, 14 or 15(d) of the 1934 Act.
(e) The Company shall qualify the Offered Securities for offer and
sale under the securities or "Blue Sky" laws of such jurisdictions as the
Underwriter shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such qualification
of the eligibility of the Offered Securities for investment under the laws
of such jurisdictions as the Underwriter may designate; provided that in
connection therewith the Company shall not be required to qualify to do
business or to file a general consent to service of process in any
jurisdiction.
7
(f) For so long as any of the Offered Securities remain outstanding,
to furnish to the Underwriter upon request in writing copies of such
financial statements and other periodic and special reports as the Company
may from time to time distribute generally to its creditors or the holders
of the Offered Securities and to furnish to the Underwriter copies of each
annual or other report the Company shall be required to file with the
Commission.
(g) To the extent, if any, that the rating provided with respect to
the Offered Securities by the rating agency or agencies that initially
rate the Offered Securities is conditional upon the furnishing of
documents or the taking of any other actions by the Company, the Company
shall use its best efforts to furnish such documents and take any such
other actions.
(h) The Company will enter into the Mortgage Loan Purchase and Sale
Agreement and the Pooling and Servicing Agreement on or prior to the
Closing Date.
4. Representations and Warranties of the Company. The Company represents
and warrants to the Underwriter that:
(a) The Registration Statement on Form S-3 (No. 333-_________)
including the Prospectus, has become effective. No stop order suspending
the effectiveness of such Registration Statement has been issued and no
proceeding for that purpose has been initiated or, to the best knowledge
of the Company, threatened by the Commission. The Prospectus Supplement
will be filed with the Commission pursuant to Rule 424 under the 1933 Act.
The conditions to the use of a registration statement on Form S-3 under
the 1933 Act, as set forth in the General Instructions on Form S-3, and
the conditions of Rule 415 under the 1933 Act, have been satisfied with
respect to the Company and the Registration Statement. There are no
contracts or documents of the Company that are required to be filed as
exhibits to the Registration Statement pursuant to the 1933 Act or the
rules and regulations thereunder that have not been so filed.
(b) (i) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
thereunder, and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; (ii) on the date of this Underwriting
Agreement, the Registration Statement and the Final Prospectus conform,
and as of the Closing Date, the Registration Statement and the Final
Prospectus, as amended or supplemented, if applicable, will conform in all
material respects to the requirements of the 1933 Act and the rules and
regulations thereunder; and (iii) on the date of this Underwriting
Agreement, the Final Prospectus does not include, and as of the Closing
Date, the Final Prospectus, as amended or supplemented, if applicable,
will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing does not apply
to statements or omissions in any of such documents made in reliance upon
and in conformity with information furnished in writing (including
electronic media) to the Company by the Underwriter specifically for use
in the Prospectus Supplement.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise
stated therein, there has been no material
8
adverse change in the condition, financial or otherwise, earnings,
affairs, regulatory situation or business prospects of the Company,
whether or not arising in the ordinary course of business of the Company.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Missouri.
The Company has all requisite power and authority (corporate and other)
and all requisite authorizations, approvals, order, licenses, certificates
and permits of and from all governmental or regulatory officials and
bodies to own its properties, to conduct its business as described in the
Registration Statement and the Final Prospectus and to execute, deliver
and perform this Underwriting Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase and Sale Agreement, except (i)
such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution by the Underwriter of the
Offered Securities and by the Placement Agent of the Privately Placed
Certificates and (ii) for such authorizations, approvals, orders,
licenses, certificates and permits the failure of which to obtain would
not have a material adverse affect on the Company. All such
authorizations, approvals, orders, licenses, certificates and permits are
in full force and effect and contain no unduly burdensome provisions and,
except as set forth or contemplated in the Registration Statement or the
Final Prospectus, there are no legal or governmental proceedings pending
or, to the best knowledge of the Company, threatened that would result in
a modification, suspension or revocation thereof that would have a
material adverse affect on the Company.
(e) The Offered Securities have been duly authorized, and when they
are issued and delivered pursuant to this Underwriting Agreement in
exchange for the purchase price thereof, they will have been duly
executed, issued and delivered and will be entitled to the benefits
provided by the Pooling and Servicing Agreement, subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally, and
to general principles of equity (regardless of whether considered in a
proceeding in equity or at law), and will conform in substance to the
description thereof contained in the Registration Statement and the Final
Prospectus, and will in all material respects be in the form contemplated
by the Pooling and Servicing Agreement.
(f) This Agreement has been duly authorized, executed and delivered
by the Company. Each of the Pooling and Servicing Agreement and the
Mortgage Loan Purchase and Sale Agreement, when executed and delivered as
contemplated hereby, will have been duly authorized, executed and
delivered by the Company. This Underwriting Agreement constitutes, and
each of the Pooling and Servicing Agreement and the Mortgage Loan Purchase
and Sale Agreement when so executed and delivered will constitute, a
legal, valid, 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.
(g) As of the Closing Date, the Offered Securities, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase and Sale Agreement and
each of the Mortgage Loans will each conform in all material respects to
the respective descriptions thereof contained in the Prospectus
Supplement, and on the Closing Date, the Company (pursuant to the Pooling
and Servicing Agreement) will assign to the Trustee for the benefit of the
Certificateholders of the Offered Securities, certain representations and
warranties with respect to the Mortgage Loans made
9
by the Mortgage Loan Seller to the Company in the Mortgage Loan Purchase
and Sale Agreement, and the representations and warranties will be true
and correct in all material respects.
(h) No filing or registration with, or notice to, or consent,
approval, non-disapproval, authorization or order or other action of, any
court or governmental authority or agency is required for the consummation
by the Company of the transactions contemplated by this Underwriting
Agreement or the Pooling and Servicing Agreement, except (i) such as have
been obtained, (ii) such as may be required under the 1933 Act, the rules
and regulations thereunder, or state securities or "Blue Sky" laws, in
connection with the purchase and distribution of the Offered Securities by
the Underwriter or of the Privately Placed Certificates by the Placement
Agent and (iii) any the failure of which to obtain would not have a
material adverse affect on the Company.
(i) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending to which the
Company is a party or of which any property of the Company is the subject
which, if determined adversely to the Company would individually or in the
aggregate have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business or business prospects of the
Company and, to the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(j) As of the Closing Date, each of the Mortgage Loans will meet the
criteria for selection described in the Final Prospectus, and at the
Closing Date, the representations and warranties made by the Company in
the Pooling and Servicing Agreement will be true and correct as of the
date made.
(k) At the time of execution and delivery of the Pooling and
Servicing Agreement, (i) the Company will have good and marketable title
to the Mortgage Loans, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively "Liens"), and will not have assigned to any person any of
its right, title or interest in the Mortgage Loans or in the Pooling and
Servicing Agreement or the Offered Securities, (ii) the Company will have
the power and authority to transfer the Offered Securities to the
Underwriter and (iii) upon execution and delivery to the Trustee of the
Pooling and Servicing Agreement and delivery to the Underwriter of the
Offered Securities, and delivery to the Underwriter of the Privately
Placed Certificates, the Trustee will have good and marketable title to
the Mortgage Loans and the Underwriter will have good and marketable title
to the Offered Securities, in each case free and clear of any Liens.
(l) Neither the Company nor the Trust Fund is, and neither (i) the
issuance and sale of the Offered Securities in the manner contemplated by
the Final Prospectus, nor (ii) 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.
(m) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund is not required to be registered under the Investment Company Act of
1940, as amended.
10
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Underwriting Agreement, the
Pooling and Servicing Agreement and the Offered Securities have been or
will be paid at or
prior to the Closing.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become liable under the 1933 Act, the 1934 Act, or
other federal or state law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Final Prospectus or in any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse such indemnified
party for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information (including in electronic media) furnished to the
Company by the Underwriter specifically for use therein, and (ii) such indemnity
with respect to the preliminary Final Prospectus shall not inure to the benefit
of the Underwriter (or any person controlling the Underwriter) with respect to
any person asserting any such loss, claim, damage or liability who purchased the
Offered Securities that are the subject thereof if such person did not receive a
copy of the Final Prospectus to the confirmation of the sale of such Offered
Securities to such person in any case where such delivery is required by the
1933 Act and the untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact contained in the
preliminary Final Prospectus (or other written material prepared in lieu
thereof) was corrected in the Final Prospectus. This indemnity will be in
addition to any liability that the Company may otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company 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, to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only with reference to
written information furnished to the Company by or on behalf of the Underwriter
(including in electronic media) specifically for use in the documents referred
to in the foregoing indemnity. This indemnity will be in addition to any
liability that the Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party in writing of the commencement thereof,
but failure to notify the indemnifying party of any such claims shall not
relieve the indemnifying party of any liability that it may have to any
indemnified party except to the extent that the indemnifying party was
prejudiced by such failure. The indemnifying party will be entitled to
participate at its own expense in the defense or, if it so elects, to assume the
defense of any suit brought to enforce any such liability, but, if the
indemnifying party elects to assume the defense, such defense shall be conducted
by legal counsel reasonably acceptable to the indemnified party. In the event
the indemnifying party elects to assume the defense of any such suit and retain
such legal counsel, any indemnified party that is a defendant in the suit may
retain additional legal counsel but shall bear the legal fees and disbursements
of such legal
11
counsel unless (i) the indemnifying party and such indemnified party shall have
mutually agreed to the retention of such legal counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and such indemnified party, and representation of both such
parties by the same legal counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the legal fees and
disbursements of more than one legal counsel for all the indemnified parties and
that all such legal fees and disbursements shall be reimbursed by the
indemnifying party as they are incurred. The indemnifying party shall not be
liable to indemnify any person for any settlement of any claim effected without
its prior written consent. The indemnifying party shall not, without the prior
written consent of any indemnified party, which consent will not be unreasonably
withheld, effect any settlement of any pending or threatened proceeding in
respect of which such indemnified party is a party and indemnity is or could
have been sought hereunder by such indemnified party.
(d) If the indemnification provided for in this Section 5 shall for any
reason be unavailable to an indemnified party under this Section 5, then the
Company and the Underwriter shall contribute to the amount paid or payable by
such indemnified party as a result of the aggregate losses, claims, damages and
liabilities referred to in paragraph (a) or (b) above, in such proportion as is
appropriate to reflect (i) the relative benefits received by the Company on the
one hand and the Underwriter on the other from the placement of the Offered
Securities, and (ii) the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statement or omission that
resulted in such losses, claims, damages and liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriter shall be deemed to be in the same proportion as the purchase
price paid by the Underwriter pursuant to Section __ hereof bears to the
difference between (i) the total price at which the Offered Securities were sold
by the Underwriter and (ii) the purchase price paid by the Underwriter pursuant
to Section __ hereof. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriter agree that it
would not be just and equitable if contributions pursuant to this paragraph (d)
were to be determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
paragraph (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this paragraph (d).
Notwithstanding the provisions of this paragraph (d), the Underwriter shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities placed by it exceeds the amount of any
damages that the Underwriter has otherwise been required to pay or has become
liable 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 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 5, each person, if any, who controls the Underwriter
within the meaning of either the 1933 Act or the 1934 Act shall have the same
rights to contribution as the Underwriter, and each person, if any, who controls
the Company within the meaning of either the 1933 Act or the 1934 Act, each
director and each officer of the Company shall have the same rights to
contribution as the Company. Any party entitled to contribution will promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a
12
claim for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have to a party entitled to contribution except to the
extent the party obligated to make such contribution was prejudiced by such
failure.
6. Survival of Certain Representations and Obligations. The respective
representations, warranties, agreements, covenants, indemnities and other
statements of the Company, its officers and the Underwriter set forth in, or
made pursuant to, this Underwriting Agreement shall remain in full force and
effect, regardless of any investigation, or statement as to the result thereof,
made by or on behalf of any Underwriter, the Company, or any of the offices or
directors or any controlling person of any of the foregoing, and shall survive
the delivery of and payment for the Offered Securities.
7. Termination. (a) This Underwriting Agreement may be terminated by the
Company by notice to the Underwriter in the event that a stop order suspending
the effectiveness of the Registration Statement shall have been issued or
proceedings for that purpose shall have been instituted or threatened.
(b) This Underwriting Agreement may be terminated by the Underwriter by
notice to the Company in the event that the Company or the Master Servicer shall
have failed, refused or been unable to perform all obligations and satisfy all
conditions to be performed or satisfied hereunder by the Company or the Master
Servicer, respectively, at or prior to the Closing Date.
(c) Termination of this Underwriting Agreement pursuant to this Section 7
shall be without liability of any party to any other party other than as
provided in Section 8 hereof.
8. Default of Underwriter. If the Underwriter defaults in its obligation
to purchase the Offered Securities as provided in this Underwriting Agreement
and the aggregate principal amount of the Offered Securities with respect to
which such default occurs is more than ten percent of the aggregate principal
amount or notional amount as applicable, of such Offered Securities, as the case
may be, and arrangements satisfactory to the Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after any such default, this Underwriting Agreement will terminate without
liability on the part of the Company except for the expenses to be paid or
reimbursed by the Company pursuant to Section 9 hereof. As used in this
Underwriting Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 8.
9. Expenses. The Company agrees with the Underwriter that: (a) whether or
not the transactions contemplated in this Underwriting Agreement are consummated
or this Underwriting Agreement is terminated, the Company will pay all fees and
expenses incident to the performance of its obligations under this Underwriting
Agreement, including but not limited to, (i) the Commission's registration fee,
(ii) the expenses of printing and distributing the Registration Statement, any
preliminary prospectus, the Prospectus Supplement, any amendments or supplements
to the Registration Statement or the Prospectus Supplement, and any Blue Sky
memorandum or legal investment survey and any supplements thereto, (iii) fees
and expenses of rating agencies, accountants and counsel for the Company, (iv)
the expenses referred to in Section 3(e) hereof, and (v) all miscellaneous
expenses referred to in Item 14 of the Registration Statement; (b) all
out-of-pocket expenses, including counsel fees, disbursements and expenses,
reasonably incurred by the Underwriter in connection with investigating,
preparing to market and marketing the Offered Securities and proposing to
purchase and purchasing the Offered Securities under this
13
Underwriting Agreement will be borne and paid by the Company if this
Underwriting Agreement is terminated by the Company pursuant to Section 8 hereof
or by the Underwriter on account of the failure, refusal or inability on the
part of the Company to perform all obligations and satisfy all conditions on the
part of the Company to be performed or satisfied hereunder; and (c) the Company
will pay the cost of preparing the certificates for the Offered Securities.
Except as otherwise provided in this Section 9, the Underwriter agrees to
pay all of its expenses in connection with investigating, preparing to market
and marketing the Offered Securities and proposing to purchase and purchasing
the Offered Securities under this Underwriting Agreement, including the fees and
expenses of their counsel and any advertising expenses incurred by it in making
offers and sales of the Offered Securities.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter, will be mailed, delivered or
telecopied and confirmed to the Company at ______________________________,
attention: ______________, facsimile number _______________ or, if sent to the
Company, will be mailed, delivered or telecopied and confirmed to it at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇.
11. Successors. This Underwriting Agreement shall inure to the benefit of
and shall be binding upon the Underwriter, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Underwriting Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Underwriting Agreement, or any provisions herein contained; the Underwriting
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person, except that (i) the representations and warranties of the
Company contained in this Underwriting Agreement shall also be for the benefit
of any person or persons who controls or control any Underwriter within the
meaning of Section 15 of the 1933 Act, and (ii) the indemnities by the
Underwriter shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who controls or control the Company within the meaning of
Section 15 of the 1933 Act. No purchaser of the Offered Securities from the
Underwriter shall be deemed a successor because of such purchase.
12. Applicable Law; Counterparts. This Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York.
This Underwriting 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.
13. Time of the Essence. Time shall be of the essence of this Underwriting
Agreement.
14
If the foregoing is in accordance with your understanding, please sign and
return two counterparts hereof.
Very truly yours,
COMMERCIAL MORTGAGE ACCEPTANCE CORP.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
Accepted as of the date hereof
_______________________________
By:_____________________________
Name:___________________________
Title:_________________________
15
SCHEDULE I
Title of Offered Securities:
Commercial Mortgage Acceptance Corp. Commercial Mortgage
Pass-Through Certificates, Series [______________], [insert
offered Classes]
Terms and Conditions:
Specified funds for payment of purchase price:
Wire transfer of immediately available Federal Funds.
Required Rating:
As described in the Prospectus Supplement.
Time of Delivery:
____________________, 199_ at 10:00 a.m. _______________ time
Closing Location:
________________________
________________________
________________________
Names and address of Underwriter:
Address for Notices, etc: _____________________________
_____________________________
16