[CRIIMI MAE CMBS CORP.
Mortgage Pass-Through Certificates]
[CRIIMI MAE COMMERCIAL MORTGAGE TRUST [I]
Collateralized Mortgage Obligations]
Series _____
UNDERWRITING AGREEMENT
_________________, 19__
[Lead Underwriter's name and address]
Ladies and Gentlemen:
[CRIIMI MAE CMBS Corp., a Delaware corporation (the
"Company")][CRIIMI MAE Commercial Mortgage Trust [I], a Delaware business trust
(the "Issuer") established by CRIIMI MAE CMBS Corp., a Delaware corporation (the
"Company")], proposes, subject to the terms and conditions stated herein (this
"Agreement"), to sell to the underwriters named in Schedule I hereto (the
"Underwriters"; provided, however, that if you are the only underwriter named in
Schedule I, then the terms "Underwriter" and "Underwriters" shall refer solely
to you) the respective classes (each a "Class") of its [Mortgage Pass-Through
Certificates] [Collateralized Mortgage Obligations], Series ___ , as specified
in Schedule II hereto (the "Offered Securities"), to be issued pursuant to a
[Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") to be
dated as of __________, 19__ (the "Cut-off Date"), among the Company, as
depositor, ______________________, as master servicer (the "Master Servicer"),
____________, as special servicer (the "Special Servicer") and ____________, as
trustee (in such capacity, the "Trustee") and REMIC administrator (in such
capacity, the "REMIC Administrator")] [Terms Indenture, dated as of _________,
199_ (the "Terms Indenture"), between ___________________, as owner trustee (the
"Owner Trustee"), on behalf of the Issuer, and ____________________, as
indenture trustee (the "Indenture Trustee") on behalf of holders of the
Securities (as defined below), which Terms Indenture incorporates by reference
the Company's Standard Indenture Provisions, dated as of __________, 199_ (the
"Standard Indenture Provisions"; and, the Terms Indenture, as it incorporates
the Standard Indenture Provisions, the "Indenture")]. The Offered Securities,
together with the Class ___ Securities and Class ___ Securities issued
simultaneously therewith (together with the Offered Securities, the
"Securities"), will [evidence undivided interests in a trust fund (the "Trust
Fund") to be established by the Company pursuant to the Pooling and Servicing
Agreement][constitute non-recourse obligations of the Company secured by a
pledge of a trust estate (the "Trust Estate") consisting of all rights, money,
instruments, securities and other property, including all proceeds thereof,
which are subject to, or intended to be subject to, the lien of the
Indenture for the benefit of holders of the Securities, including without
limitation certain collateral (the "Collateral")]. [[Three] real estate mortgage
investment conduit ("REMIC") elections are to be made with respect to the Trust
Fund with the resulting REMICs being referred to as ["REMIC I", "REMIC II" and
"REMIC III"], respectively].
[The Trust Fund] [The Collateral] will consist primarily of a pool
(the "Pool") of [specify general characteristics of the Mortgage Loans] mortgage
loans (the "Mortgage Loans") [transferred by the Company to the Trust Fund and
set forth in a schedule attached to the Pooling and Servicing Agreement]
[transferred by the Company to the Owner Trustee, on behalf of the Issuer,
pursuant to a Deposit Trust Agreement, dated as of _________, 199__ (the
"Deposit Trust Agreement"), between the Company and the Owner Trustee, and
pledged by the Issuer, to the Indenture Trustee, on behalf of the holders of the
Securities, pursuant to the Indenture (to which is attached a schedule of the
Mortgage Loans)]. The Mortgage Loans will be acquired by the Company pursuant to
a Mortgage Loan Purchase and Sale Agreement dated as of ___________, 199___ (the
"Mortgage Loan Purchase Agreement"), between the Company, as purchaser, and
_______________, as seller (the "Mortgage Loan Seller"). [The Mortgage Loans
will be serviced and administered pursuant to a Servicing and Administration
Agreement, dated as of __________, 199__ (the "Servicing and Administration
Agreement"), among the Owner Trustee, on behalf of the Issuer, _____________, as
master servicer (the "Master Servicer"), _____________, as special servicer (the
"Special Servicer"), and the Indenture Trustee, for the benefit of the holders
of the Securities. Certain administrative services will be provided to the
Issuer by ____________ (the "General Administrator") pursuant to a General
Administration Agreement, dated as of ___________, 199__ (the "General
Administration Agreement"), between the General Administrator and the Owner
Trustee, on behalf of the Issuer.]
The [Pooling and Servicing Agreement][Indenture], the Mortgage Loan
Purchase Agreement [, the Deposit Trust Agreement, the Servicing and
Administration Agreement, the General Administration Agreement] and this
Agreement are sometimes referred to herein collectively as the "Transaction
Documents". Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to such terms in the [Pooling and Servicing
Agreement][Indenture].
The Offered Securities are described more fully in the Basic
Prospectus and the Prospectus Supplement (each of which terms is defined below)
which the Company is furnishing to you.
1. Representations and Warranties. [(a)] The Company represents and
warrants to, and agrees with, each Underwriter that:
[(a)] [(i)] The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-33877) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of the Offered Securities, which registration statement has become
effective and copies of which have heretofore been delivered to you. Such
-2-
registration statement meets the requirements set forth in Rule 415(a)(1) under
the Securities Act and complies in all other material respects with such Rule.
The Company proposes to file with the Commission pursuant to Rule 424 under the
Securities Act a supplement, dated the date specified in Schedule II hereto, to
the prospectus dated the date specified in Schedule II hereto, relating to the
Offered Securities and the method of distribution thereof and has previously
advised you of all further information (financial and other) with respect to the
Offered Securities set forth therein. Such registration statement, including the
exhibits thereto [and the Statement of Eligibility and Qualification of the
Trustee under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), on Form T-1 ("Form T-1")], as amended at the date hereof is hereinafter
referred to as the "Registration Statement"; such prospectus, in the form in
which it will be filed with the Commission pursuant to Rule 424 under the
Securities Act, is hereinafter referred to as the "Basic Prospectus"; such
supplement to the Basic Prospectus, in the form in which it will be filed with
the Commission pursuant to Rule 424 of the Securities Act, is hereinafter
referred to as the "Prospectus Supplement"; and the Basic Prospectus and the
Prospectus Supplement together are hereinafter referred to as the "Prospectus".
Any preliminary form of the Prospectus Supplement which has heretofore been
filed pursuant to Rule 402(a) of the Securities Act or Rule 424 is hereinafter
referred to as a "Preliminary Prospectus Supplement". The Company will not,
without your prior consent, file any other amendment to the Registration
Statement or make any change in the Basic Prospectus or the Prospectus
Supplement until after the end of the period during which a prospectus is
required to be delivered to purchasers of the Offered Securities under the
Securities Act. The Company[, as depositor with respect to the Trust Fund,] will
file with the Commission within fifteen days following the issuance of the
Offered Securities a report on Form 8-K setting forth specific information
concerning the Offered Securities (the "Form 8-K").
[(b)] [(ii)] As of the date hereof, when the Registration Statement
became effective, when the Prospectus Supplement is first filed pursuant to Rule
424 under the Securities Act, when, prior to the Closing Date (as defined in
Section 3 hereof), any other amendment to the Registration Statement becomes
effective, when any supplement to the Prospectus Supplement is filed with the
Commission, and at the Closing Date, (i) the Registration Statement, as amended
as of any such time, and the Prospectus, as amended or supplemented as of any
such time, complied or will comply in all material respects with the applicable
requirements of the Securities Act [and the Trust Indenture Act] and the
[respective] rules and regulations promulgated thereunder [, (ii) the Standard
Indenture Provisions conforms in all material respects, and when executed the
Terms Indenture will conform in all material respects, to the requirements of
the Trust Indenture Act and rules thereunder and (iii)] [and (ii)] the
Registration Statement, as amended as of any such time, did not and will not
contain any untrue statement of a material fact and did not and will not omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus, as amended or supplemented
as of any such time, did not and will not contain an untrue statement of a
material fact and did not and will not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company makes
no representations or warranties as to (A) the information contained in or
omitted from the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with written
-3-
information furnished to the Company by you, or by any Underwriter through you,
specifically for use in the preparation thereof, [or] (B) the information
contained in or omitted from any Current Report (as defined in Section 5(b)
hereof), or any amendment thereof or supplement thereto, incorporated by
reference in the Registration Statement or the Prospectus (or any amendment
thereof or supplement thereto) [or (C) that part of the Registration Statement
that shall constitute Form T-1].
[(c)] [(iii)] The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with full
power and authority (corporate and other) to own its properties and conduct its
business, as described in the Prospectus, and to enter into and perform its
obligations under this Agreement and each other Transaction Document to which it
is [to be] a party, and is conducting its business so as to comply in all
material respects with all applicable statutes, ordinances, rules and
regulations of the jurisdictions in which it is conducting business.
[(d)] [(iv)] The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, (ii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification of
the Offered Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
[(e)] [(v)] At or prior to the Closing Date, the Company will have
entered into the [Pooling and Servicing Agreement] [Deposit Trust Agreement] and
the Mortgage Loan Purchase Agreement; this Agreement has been duly authorized,
executed and delivered by the Company, and each other Transaction Document to
which the Company is [to be] a party, when delivered by the Company, will have
been duly authorized, executed and delivered by the Company, and this Agreement
and such other Transaction Document will constitute valid and binding agreements
of the Company, enforceable against the Company in accordance with their
respective terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, moratorium, receivership, reorganization or
similar laws affecting the rights of creditors generally, (ii) general
principles of equity, whether enforcement is sought in a proceeding in equity or
at law, and (iii) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability of
any provisions of this Agreement which purport to provide indemnification from
securities law liabilities.
[(f)] [(vi)] The Offered Securities [and the Pooling and Servicing
Agreement][, the Deposit Trust Agreement and the Indenture] conform in all
material respects to the descriptions thereof contained in the Prospectus; the
Offered Securities [are "mortgage related securities" as such term is defined in
Section 3(a)(41) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), [and have been duly and validly authorized by the Company, and
will, when duly and validly executed and authenticated by the Trustee and
delivered to and paid for by the Underwriters in accordance with this Agreement
and the Pooling and Servicing Agreement, be entitled to the benefits of the
Pooling and Servicing Agreement].
-4-
[(g)] [(vii)] As of the Closing Date, the representations and
warranties of the Company set forth in Section ___ of the [Pooling and Servicing
Agreement] [Deposit Trust Agreement] will be true and correct.
[(h)] [(viii)] Neither the issuance and sale of the Offered
Securities, nor the consummation of any other of the transactions contemplated
herein, nor the fulfillment of any of the terms of this Agreement or any other
Transaction Document, will result in the breach of any term or provision of the
certificate of incorporation or by-laws of the Company or conflict with, result
in a material breach, violation or acceleration of or constitute a default
under, the terms of any indenture or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound, or any
statute, order or regulation applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects the ability of the
Company to perform its obligations under this Agreement and the other
Transaction Documents to which it is [to be] a party.
[(i)] [(ix)] There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, any other Transaction Document to
which it is [to be] a party or the Offered Securities, (ii) seeking to prevent
the issuance of the Offered Securities or the consummation of any of the
transactions contemplated by this Agreement or any other Transaction Document,
(iii) which might materially and adversely affect the performance by the Company
of its obligations under, or the validity or enforceability of, this Agreement,
any other Transaction Document or the Offered Securities or (iv) seeking to
affect adversely the federal income tax attributes of the Offered Securities
described in the Prospectus.
[(j)] [(x)] There has not been any material adverse change in the
business, operations, financial condition, properties or assets of the Company
since the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Company to perform its obligations
under this Agreement or any other Transaction Document to which it is [ to be] a
party.
[(k)] [(xi)] Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and the other
Transaction Documents to which the Company is [to be] a party and the execution,
delivery and sale of the Offered Securities (other than any related income
taxes) have been or will be paid at or prior to the Closing Date.
[(b) The Issuer represents and warrants to, and agrees with, each
Underwriter that:
(i) The Issuer is a business trust, duly organized, validly existing
and in good standing under the laws of the State of _____________ with full
power and authority (corporate and
-5-
other) to own its properties and conduct its business, as described in the
Prospectus, and to enter into and perform its obligations under this Agreement
and the other Transaction Documents to which it is [to be] a party, and is
conducting its business so as to comply in all material respects with all
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting business.
(ii) At or prior to the Closing Date, the Issuer will have entered
into the Indenture, the Servicing and Administration Agreement and the General
Administration Agreement; this Agreement has been duly authorized, executed and
delivered by the Issuer, and each other Transaction Document to which it is [to
be] a party, when delivered by the Issuer, will have been duly authorized,
executed and delivered by the Issuer, and this Agreement and the other
Transaction Documents to which the Issuer is [to be] a party will constitute
valid and binding agreements of the Issuer, enforceable against the Issuer in
accordance with their respective terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, liquidation, moratorium, receivership,
reorganization or similar laws affecting the rights of creditors generally and
(ii) general principles of equity, whether enforcement is sought in a proceeding
in equity or at law.
(iii) The Offered Securities, the Indenture and the Servicing and
Administration Agreement conform in all material respects to the descriptions
thereof contained in the Prospectus; the Offered Securities [are "mortgage
related securities" as such term is defined in Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and] have been
duly and validly authorized by the Issuer, and will, when duly and validly
executed by the Issuer and authenticated by the Indenture Trustee and delivered
to and paid for by the Underwriters in accordance with this Agreement and the
Indenture, constitute the legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their respective terms, except
as such enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, moratorium, receivership, reorganization or similar laws affecting
the rights of creditors generally and (ii) general principles of equity, whether
enforcement is considered in a proceeding in equity or at law.
(iv) As of the Closing Date, the representations and warranties of
the Issuer set forth in Section [20] of the Terms Indenture will be true and
correct.
(v) Neither the issuance and sale of the Offered Securities, nor the
consummation of any other of the transactions contemplated herein, nor the
fulfillment of any of the terms of the this Agreement or any other Transaction
Document to which the Issuer is [to be] a party, will result in the breach of
any term or provision of the certificate of trust [or by-laws] of the Issuer [or
the Deposit Trust Agreement] or conflict with, result in a material breach,
violation or acceleration of or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Issuer or any of its
subsidiaries is a party or by which it is bound, or any statute, order or
regulation applicable to the Issuer or any of its subsidiaries of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Issuer or any of its subsidiaries. Neither the Issuer nor any of its
subsidiaries is a party to, bound by or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any
-6-
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects the ability of the Issuer to perform its obligations under
this Agreement or any other Transaction Document to which the Issuer is [to be]
a party.
(vi) There are no actions or proceedings against, or investigations
of, the Issuer pending, or, to the knowledge of the Issuer, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, any other Transaction Document to which it is [to be] a party
or the Offered Securities, (ii) seeking to prevent the issuance of the Offered
Securities or the consummation of any of the transactions contemplated by this
Agreement or any other Transaction Document, (iii) which might materially and
adversely affect the performance by the Issuer of its obligations under, or the
validity or enforceability of, this Agreement, any other Transaction Document to
which it is [to be] a party or the Offered Securities or (iv) seeking to affect
adversely the federal income tax attributes of the Offered Securities described
in the Prospectus.
(vii) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of the Issuer
since the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Issuer to perform its obligations
under this Agreement or the other Transaction Documents to which it is [to be] a
party.
(viii) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement and the other Transaction
Documents to which the Issuer is [to be] a party and the execution, delivery and
sale of the Offered Securities (other than any related income taxes) have been
or will be paid at or prior to the Closing Date.]
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the [Company]
[Issuer] agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the [Company] [Issuer], the
principal or notional amount of [each Class of] the Offered Securities set forth
opposite each such Underwriter's name in Schedule I hereto.
The purchase price for [each Class of the Offered Securities as a
percentage of the aggregate principal (or notional) amount thereof] as of the
Closing Date (as defined below) is set forth in Schedule II hereto. There will
be added to the purchase price of the Offered Securities interest in respect of
[each Class of] the Offered Securities at the interest rate applicable [to such
Class] from the Cut-off Date to but not including the Closing Date.
3. Delivery and Payment. The closing for the purchase and sale of
the Offered Securities contemplated hereby (the "Closing"), shall be made at the
date, location and time of delivery set forth in Schedule II hereto, or such
later date as the Underwriters shall designate, which date and time may be
postponed by agreement between the Underwriters and the [Company] [Issuer] or as
provided in Section 10(b) hereof (such date, location and time of delivery and
payment for the Offered Securities being herein referred to as the "Closing
Date"). Delivery of the Offered
-7-
Securities will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each class of Offered Securities will be
represented by one or more definitive global certificates to be deposited by or
on behalf of the [Company][Issuer] with DTC. Delivery of the Offered Securities
shall be made to the several Underwriters against payment by the several
Underwriters of the purchase price thereof to or upon the order of the [Company]
[Issuer] by wire transfer of immediately available funds or by such other method
as may be acceptable to the [Company] [Issuer]. The Offered Securities shall be
registered in such names and in such denominations as the Underwriters may
request not less than three full business days in advance of the Closing Date.
The [Company] [Issuer] agrees to have the Offered Securities
available for inspection, checking and packaging by the Underwriters in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Agreements. The Company [or the Issuer (as set forth below)]
agrees with the several Underwriters that:
(a) The Company will promptly advise the Underwriters (i) when,
during any period that a prospectus relating to the Offered Securities is
required to be delivered under the Securities Act, any amendment to the
Registration Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or the Prospectus or
for any additional information affecting or in respect of the Offered
Securities, (iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement affecting the Offered Securities
or the institution or threatening of any proceeding for that purpose and (iv) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Offered Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
not file any amendment to the Registration Statement or supplement to the
Prospectus unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to which you
reasonably object until after the period in which a prospectus is required to be
delivered to purchasers of the Offered Securities under the Securities Act.
Subject to the foregoing sentence, the Company will cause the Prospectus
Supplement to be transmitted to the Commission for filing pursuant to Rule 424
under the Securities Act by means reasonably calculated to result in filing with
the Commission pursuant to said Rule. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to the
Offered Securities that are delivered by an Underwriter to the Company pursuant
to Section 9 to be filed with the Commission on a Current Report on Form 8-K (a
"Current Report") pursuant to Rule 13a-11 under the Exchange Act
-8-
on the business day immediately following the later of (i) the day on which such
Computational Materials and ABS Term Sheets are delivered to counsel for the
Company by an Underwriter prior to 10:30 a.m. and (ii) the date on which this
Agreement is executed and delivered. The Company will cause one Collateral Term
Sheet (as defined in Section 9 below) with respect to the Offered Securities
that is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report
pursuant to Rule 13a-11 under the Exchange Act on the business day immediately
following the day on which such Collateral Term Sheet is delivered to counsel
for the Company by the Underwriters prior to 10:30 a.m. In addition, if at any
time prior to the availability of the Prospectus Supplement, the Underwriters
have delivered to any prospective investor a subsequent Collateral Term Sheet
that reflects, in the reasonable judgment of the Underwriters and the Company, a
material change in the characteristics of the Mortgage Loans from those on which
a Collateral Term Sheet with respect to the Offered Securities previously filed
with the Commission was based, the Company will cause any such Collateral Term
Sheet that is delivered by the Underwriters to the Company in accordance with
the provisions of Section 9 to be filed with the Commission on a Current Report
on the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to 10:30
a.m. In each case, the Company will promptly advise the Underwriters when such
Current Report has been so filed. Each such Current Report shall be incorporated
by reference in the Prospectus and the Registration Statement. Notwithstanding
the five preceding sentences, the Company shall have no obligation to file any
materials provided by the Underwriters pursuant to Section 9 which, in the
reasonable determination of the Company, are not required to be filed pursuant
to the ▇▇▇▇▇▇ Letters or the PSA Letter (each as defined in Section 9 below), or
contain erroneous information or contain any untrue statement of a material fact
or, when read in conjunction with the Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that the
Company shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any Computational Materials or ABS Term Sheets (as defined in
Section 9 below) provided by the Underwriters to the Company pursuant to Section
9 hereof. The Company shall give notice to the Underwriters of its determination
not to file any materials pursuant to the preceding sentence and agrees to file
such materials if the Underwriters reasonably object to such determination
within one business day after receipt of such notice.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act, any event
occurs as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act or the rules
under the Securities Act, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement that will correct such statement or omission or an amendment that
will effect such compliance and, if such amendment or supplement is required to
be contained in a post-effective amendment to the Registration Statement, will
use its best efforts to cause such amendment of the Registration Statement to be
made effective as soon as possible; provided, however, that the
-9-
Company will not be required to file any such amendment or supplement with
respect to any Computational Materials or ABS Term Sheets incorporated by
reference in the Prospectus other than any amendments or supplements of such
Computational Materials or ABS Term Sheets that are furnished to the Company
pursuant to Section 9 hereof which the Company determines to file in accordance
therewith.
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer relating to the Offered Securities may be
required by the Securities Act, as many copies of the Basic Prospectus, the
Preliminary Prospectus Supplement, if any, and the Prospectus Supplement and any
amendments and supplements thereto as the Underwriters may reasonably request.
[(e) The [Company] [Issuer] agrees that, so long as the Offered
Securities shall be outstanding, it will cause the [Trustee] [Indenture Trustee]
to deliver to the Underwriters the annual statement[s] as to compliance and the
annual statement[s] of a firm of independent public accountants, furnished to
the [Trustee] [Indenture Trustee] by the Master Servicer [and the Special
Servicer] pursuant to Section[s] ______ of the [Pooling and Servicing Agreement]
[Servicing and Administration Agreement], as soon as such statements are
furnished to the [Trustee] [Indenture Trustee].
(f) The [Company] [Issuer] will furnish such information, execute
such instruments and take such action, if any, as may be required to qualify the
Offered Securities for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualification in effect so
long as required for the distribution of the Offered Securities; provided,
however, that neither the Company nor the Issuer shall be required, nor shall
the Company be required to cause the Issuer, to qualify to do business in any
jurisdiction where such Person is not now so qualified or to take any action
that would subject such Person to general or unlimited service of process in any
jurisdiction where such Person is not now so subject.
[(g) The Company will pay all costs and expenses in connection with
the transactions contemplated hereby, including, but not limited to, the fees
and disbursements of its counsel; the costs and expenses of printing (or
otherwise reproducing) and delivering the Transaction Documents and the Offered
Securities; accounting fees and disbursements; the costs and expenses in
connection with the qualification or exemption of the Offered Securities under
state securities or blue sky laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith, in connection with the
preparation of any Blue Sky Survey and in connection with any determination of
the eligibility of the Offered Securities for investment by institutional
investors and the preparation of any Legal Investment Survey; the expenses of
printing any such Blue Sky Survey and Legal Investment Survey; the costs and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto), the Basic Prospectus, the
Preliminary Prospectus Supplement, if any, and the Prospectus Supplement, the
preparation and
-10-
printing of this Agreement, the furnishing to the Underwriters of such copies of
each Preliminary Prospectus Supplement, if any, and Prospectus Supplement as the
Underwriters may reasonably request and the fees of rating agencies. [Except as
provided in Section 7 hereof, the] [The] Underwriters shall be responsible for
paying all costs and expenses incurred by them in connection with their purchase
and sale of the Offered Securities, including the fees of counsel to any
Underwriter.]
6. Conditions to the Obligations to the Underwriters. The
obligations of the Underwriters to purchase the Offered Securities as provided
in this Agreement shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company [and the Issuer]
contained herein as of the date hereof and the Closing Date, to the accuracy in
all material respects of the statements of the Company [and the Issuer] made in
any certificates pursuant to the provisions hereof, to the performance in all
material respects by [each of] the Company [and the Issuer] of its obligations
hereunder and to the following additional conditions with respect to the Offered
Securities:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened; and the Prospectus Supplement shall have been
filed with the Commission within the time period prescribed by the Commission.
(b) The Company [and the Issuer] shall [each] have delivered to you
a certificate, dated the Closing Date, of any of [the respective] [list
applicable executives] of the Company [and the Issuer] to the effect that the
signer of such certificate has carefully examined this Agreement and the
Prospectus and that: (i) to the best of his knowledge, (A) the representations
and warranties of the Company [and the Issuer, as applicable,] 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, (B) the Company [and the Issuer]
has in all material respects complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to the
Closing Date, and (C) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's [and the Issuer's,] knowledge, threatened;
and (ii) nothing has come to his/her attention that would lead him/her to
believe that the Prospectus contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(c) The Underwriters shall have received from [Sidley & Austin],
counsel for the Company [and the Issuer], a favorable opinion, dated the Closing
Date and reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) Each of this Agreement and each other Transaction Document to
which the Company [or the Issuer] is a party has been duly executed and
delivered by the Company [and the Issuer, as applicable,] under the law of
the State of New York;
-11-
(ii) Each of this Agreement [and the Pooling and Servicing
Agreement] [, the Deposit Trust Agreement, the Indenture and the Servicing
and Administration Agreement] is a legal, valid and binding agreement of
the Company [and the Issuer, as applicable,] enforceable against [each of]
the Company [and the Issuer] in accordance with its terms, except as
enforceability may be limited by (A) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting
the enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (C) in the case of this Agreement, public policy
considerations underlying the securities laws to the extent that the same
limit the enforceability of the provisions of this Agreement that purport
or are construed to provide indemnification with respect to securities law
violations;
(iii) The Offered Securities, when duly executed, authenticated and
delivered in accordance with the [Pooling and Servicing Agreement]
[Indenture] and paid for in accordance with this Agreement, will be
validly issued and outstanding and [entitled to the benefits of the
Pooling and Servicing Agreement] [constitute the legal, valid and binding
obligations of the Issuer, enforceable in accordance with their respective
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, moratorium, receivership, reorganization or
similar laws affecting the rights of creditors generally and (ii) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law];
(iv) The [Pooling and Servicing Agreement is not required to be]
[Indenture is] qualified under the Trust Indenture Act and [the trust
created thereunder] [the Issuer] is not required to be registered under
the Investment Company Act of 1940, as amended;
(v) [(Based solely upon telephonic confirmation from a
representative of the Commission)] the Registration Statement is effective
under the Securities Act and, to the best of such counsel's knowledge, no
stop order with respect thereto has been issued, and no proceeding for
that purpose has been instituted or threatened by the Commission under the
Securities Act; such Registration Statement (except the financial
statements and schedules and other financial and statistical data included
therein and the documents incorporated by reference therein, as to which
such counsel need express no view), at the time it became effective and
the Prospectus (except the financial statements and schedules and the
other financial and statistical data included therein and the documents
incorporated by reference therein, as to which such counsel need express
no view), as of the date of the Prospectus Supplement, appeared on their
face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the rules and regulations
thereunder;
(vi) The statements set forth under the heading "Description of the
[conform to actual description of Offered Securities in the Prospectus]"
in the Prospectus, insofar as such statements purport to summarize certain
provisions of the [Pooling and Servicing
-12-
Agreement] [Indenture], the other Transaction Documents and the Offered
Securities, provide a fair summary of such provisions;
(vii) The statements set forth in the Prospectus under the headings
"Material Federal Income Tax Consequences" (insofar as they relate
specifically to the purchase, ownership and disposition of the Offered
Securities) and "ERISA Considerations" (insofar as they relate
specifically to the purchase, ownership and disposition of the Offered
Securities), to the extent that they describe certain matters of law or
legal conclusions, provide a fair and accurate summary of such law or
conclusions; and
[(viii) assuming compliance with all provisions of the Pooling and
Servicing Agreement, for federal income tax purposes, each of [REMIC I,
REMIC II and REMIC III] will qualify as a REMIC pursuant to Section 860D
of the Internal Revenue Code of 1986, as amended (the "Code"), each Class
of Securities other than the Securities identified in the Prospectus
Supplement as REMIC Residual Securities, will constitute a class of
"regular interests" in a REMIC within the meaning of the Code, and each
Class of Securities identified in the Prospectus Supplement as a Class of
REMIC Residual Securities will constitute the "residual interest" in a
REMIC within the meaning of the Code. ]
Such opinion (a) may express its reliance as to factual matters on
certificates of government and agency officials and the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement and the other Transaction Documents, (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 Issuer], and (c) may be qualified as an opinion only on the law of the State
of New York, the federal law of the United States of America and the General
Corporation Law of the State of Delaware.
Based on such counsel's participation in conferences with officers
and other representatives of the Company [and the Issuer] and of the Master
Servicer, the Special Servicer, the [Trustee][Indenture Trustee, the Owner
Trustee, the General Administrator] [, the REMIC Administrator], the
Underwriters and their respective counsel, at which the contents of the
Registration Statement and the Prospectus were discussed and, although such
counsel need not pass upon or assume responsibility for the actual accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except as stated in paragraphs [(vi) and (vii)]
above) and need not make an independent check or verification thereof for the
purpose of rendering this opinion, on the basis of the foregoing, such counsel
shall also confirm that nothing has come to the attention of such counsel that
would lead such counsel to believe that the Registration Statement (which for
purposes of such opinion shall not be deemed to include any exhibits filed
therewith or documents or information incorporated by reference therein), at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, as of the
date of the Prospectus Supplement and at the Closing Date, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact necessary
-13-
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (other than financial statements, schedules and
other numerical, accounting, financial and statistical data or other information
of that nature and the documents incorporated therein and the information
included under the caption "Method of Distribution" contained in the
Registration Statement, any amendment thereof and the Prospectus, as to which
such counsel need express no opinion). Insofar as questions of materiality are
involved in the foregoing opinion, such counsel may as to factual matters
necessary to the determination of materiality rely upon certificates and other
information provided by officers and other representatives to the Company [and
the Issuer] and as to determinations of materiality, may seek in the first
instance and rely where such counsel concludes such reliance is justifiable, on
the view of officers and other representatives of the Company [and the Issuer].
(d) The Underwriters shall have received from [▇▇▇▇▇▇ & Austin] a
favorable opinion, dated the Closing Date and satisfactory in form and substance
to counsel for the Underwriters, to the effect that:
(i) [(1)] The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware and
has the corporate power and authority to enter into and perform its
obligations under this Agreement and the other Transaction Documents to
which it is a party and to consummate the transactions contemplated hereby
and thereby [, and (2) the Issuer is a business trust, duly organized,
validly existing and in good standing under the laws of the State of
___________ and has full power and authority to enter into and perform its
obligations under the Indenture and the other Transaction Documents to
which it is a party and to consummate the transactions contemplated hereby
and thereby].
(ii) Neither the offer, sale and issuance of the Offered Securities
nor the consummation of any other of the transactions contemplated in this
Agreement or any other Transaction Document will conflict with or result
in a breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or notification, or
both, would constitute a default), under the certificate of incorporation
or by-laws of the Company [or the certificate of trust [or by-laws] of the
Issuer [or the Deposit Trust Agreement], as applicable,] or, to the
knowledge of such counsel, any indenture or other agreement or instrument
to which the Company [or the Issuer, as applicable,] is a party or by
which it is bound, or any State of New York, State of Delaware or federal
statute or regulation applicable to the Company [or the Issuer, as
applicable,] or, to the knowledge of such counsel, any order of any State
of New York, State of Delaware or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company [or the Issuer].
(iii) To the knowledge of such counsel, there are no material
contracts, indentures or other documents of the Company [or the Issuer]
required to be described or referred to in
-14-
the Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(iv) There is no pending or, to the best knowledge of such counsel,
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company [or the
Issuer] of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and there
is no franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as
an exhibit, which is not described or filed as required.
(v) No consent, approval, authorization or order of any State of New
York, State of Delaware or federal court or governmental agency or body is
required for the consummation by the Company [and the Issuer, as
applicable,] of the transactions contemplated by this Agreement and the
other Transaction Documents, except (i) such as have been obtained under
the Securities Act and (ii) such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and the offer and
sale of the Offered Securities by any Underwriter, as to which such
counsel need express no opinion.
Such opinion (a) may express counsel's reliance as to factual
matters on certificates of government and agency officials and the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the other
Transaction Documents and (b) may be qualified as an opinion only on the law of
the State of New York, the General Corporation Law of the State of Delaware and
the federal law of the United States of America.
(e) The Underwriters shall have received, with respect to each of
the Master Servicer, the Special Servicer [, the REMIC Administrator] and the
[Trustee][Indenture Trustee, the Owner Trustee, the General Administrator], as
applicable, a favorable opinion of counsel, dated the Closing Date, addressing
the valid existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery by such party of
each Transaction Document to which it is a party and, subject to the same
limitations as set forth in Section 6(c)(ii), the enforceability against such
party of each such Transaction Document. Such opinion may express its reliance
as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of parties to, this Agreement and the other Transaction
Documents and on certificates furnished by public officials. Such opinion may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party on
behalf of which such opinion is being rendered. Such opinion may be qualified as
an opinion only on the [law under which the respective entity is organized (if
relevant)], the laws of each state in which the writer of the opinion is
admitted to practice law and the federal law of the United States.
-15-
(f) The Underwriters shall have received from ____________, counsel
for the Underwriters, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters.
(g) The Underwriters shall have received from ________________
certified public accountants, a letter dated the Closing Date and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters
[stating in effect that using the assumptions and methodology used by the
Company, all of which shall be described in such letter, they have recalculated
such numbers and percentages set forth in the Prospectus as the Underwriters may
reasonably request and as are agreed to by _________________, compared the
results of their calculations to the corresponding items in the Prospectus, and
found each such number and percentage set forth in the Prospectus to be in
agreement with the results of such calculations]. [To the extent historical
financial information with respect to the Company and/or historical financial,
delinquency or related information with respect to one or more servicers is
included in the Prospectus, such letter or letters shall also relate to such
information.]
(h) The Offered Securities listed on Schedule II hereto shall have
been rated as indicated on such schedule by the rating agency or agencies
indicated.
(i) All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto and thereto, shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such additional information, certificates and documents as they may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided by this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company [and the Issuer] in writing, or by
telephone, telegraph or telecopier confirmed in writing.
[7. Reimbursement of Underwriters' Expenses. If the sale of any
Offered Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company [or the Issuer] to perform any agreement herein or comply with any
provision hereof, other than by reason of a default by any of the Underwriters,
the Company [and the Issuer, severally and not jointly] will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of such Offered
Securities.]
-16-
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they may become subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any part of the Registration Statement
when such part became effective, or in the Registration Statement, any
Preliminary Prospectus Supplement, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials or ABS Term Sheets (as
defined in Section 9 below) in respect of which the Company agrees to indemnify
any Underwriter or any such controlling person, as set forth below, when such
are read in conjunction with the Prospectus) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each such controlling person
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability, or
action; provided, however, (i) that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein (A) in reliance upon and in conformity with
written information furnished to the Company by any Underwriter directly or
through another Underwriter specifically for use in the preparation thereof or
(B) in any Current Report or any amendment or supplement thereof, except to the
extent that any untrue statement or alleged untrue statement therein or omission
therefrom results (or is alleged to have resulted) directly from an error (a
"Collateral Error") in the information concerning the characteristics of the
Mortgage Loans furnished by the Company to an Underwriter in writing or by
electronic transmission that was used in the preparation of either (x) any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) or (y) any written or electronic materials furnished to prospective
investors on which the Computational Materials (or amendments or supplements)
were based, (ii) such indemnity with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Offered Securities which are the subject thereof if such
person did not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such Offered
Securities to such person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material fact contained
in such preliminary prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented) and (iii) such indemnity with respect to
any Collateral Error shall not inure to the benefit of any Underwriter (or any
person controlling any Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials or ABS Term
Sheets (or any written or electronic materials on which the Computational
Materials or ABS Term Sheets are based) that were prepared on the basis of such
Collateral Error, if, prior to the time of confirmation of the sale of the
applicable Offered Securities to such person, the Company notified such
Underwriter in writing of the Collateral Error or provided in written or
electronic form information superseding or correcting such Collateral Error (in
any such case, a "Corrected Collateral Error"), and such Underwriter failed to
notify such person thereof or
-17-
to deliver to such person corrected Computational Materials (or underlying
written or electronic materials) or ABS Term Sheets. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each of its directors, each of the officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to (A) written information relating to such Underwriter furnished
to the Company by an Underwriter directly or through another Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity, or (B) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) delivered to prospective investors by such
Underwriter and furnished to the Company by such Underwriter pursuant to or as
contemplated by Section 9 and incorporated by reference in the Registration
Statement or the Prospectus or any amendment or supplement thereof (except that
no such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof, resulting from any Collateral Error,
other than a Corrected Collateral Error). This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in _____________________________ and
under the heading "Method of Distribution" in any Preliminary Prospectus
Supplement or the Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity (other than any Computational
Materials or ABS Term Sheets furnished to the Company by any Underwriter), and
each Underwriter confirms that such statements are correct. [Any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) furnished to
the Company by a particular Underwriter shall relate exclusively to and be the
several responsibility of such Underwriter and no other Underwriter.]
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party (which may be counsel representing the
indemnifying party); provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties.
-18-
Upon receipt of notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the immediately preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of paragraph (a) of
this Section 8, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in paragraph (a) or (b) above as
follows:
(i) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which do not arise out of or are not based
upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or
supplements thereof), in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount bears to the sum of such discount and the purchase
price of the Offered Securities specified in Schedule I hereto and the
Company is responsible for the balance; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Offered Securities) be
responsible under this subparagraph (i) for any amount in excess of the
underwriting discount applicable to the Offered Securities purchased by
such Underwriter hereunder; and
(ii) in the case of any losses, claims, damages and liabilities (or
actions in respect thereof) which arise out of or are based upon any
untrue statement or omission of a material fact in any Computational
Materials or ABS Terms Sheets (or any amendments or supplements thereof)
or in any written or electronic materials on which the Computational
Materials are based, in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statement or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as
well as any other relevant equitable considerations. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact in such Computational Materials
or ABS Term Sheets (or any amendments or supplements
-19-
thereof or such written or electronic materials) results from information
prepared by the Company on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of the
Securities Act shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding sentence of this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Computational Materials and ABS Term Sheets. (a) Not later than
10:30 a.m., New York City time, on the date hereof, the Underwriters shall
deliver to the Company and its counsel, as provided below, five complete copies
of all materials provided by the Underwriters to prospective investors in the
Offered Securities which constitute either (i) "Computational Materials" within
the meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation
I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "▇▇▇▇▇▇ Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and together with the ▇▇▇▇▇▇ Letters, the "No-Action Letters"), if
the filing of such materials with the Commission is a condition of the relief
granted in such letters and, in the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, such Collateral
Term Sheets have not previously been delivered to the Company as contemplated by
Section 9(b)(i) below. For purposes of this Agreement, "Structural Term Sheets"
shall have the meaning set forth in the PSA Letter. Each delivery of
Computational Materials and/or ABS Term Sheets to the Company pursuant to this
paragraph (a) shall be effected by delivering four copies of such materials to
counsel for the Company on behalf of the Company at the address specified in
Section 13 hereof and one copy of such materials to the Company.
(b) Each underwriter represents and warrants to and agrees with the
Company, as of the date hereof and as of the Closing Date, as applicable, that:
-20-
(i) if such Underwriter has provided any Collateral Term Sheets to
potential investors in the Offered Securities prior to the date hereof and
if the filing of such materials with the Commission is a condition of the
relief granted in the PSA Letter, then in each such case such Underwriter
delivered four copies of such materials to counsel for the Company on
behalf of the Company at the address specified in Section 13 hereof and
one copy of such materials to the Company no later than 10:30 a.m., New
York City time, on the first business day following the date on which such
materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to the Company pursuant
to Section 9(a) or as contemplated in Section 9(b)(i) constitute all of
the materials relating to the Offered Securities furnished by such
Underwriter (whether in written, electronic or other format) to
prospective investors in the Offered Securities prior to the date hereof,
except for any preliminary prospectus with respect to the Offered
Securities and any Computational Materials and ABS Term Sheets with
respect to the Offered Securities which are not required to be filed with
the Commission in accordance with the No-Action Letters, and all
Computational Materials and ABS Term Sheets provided by such Underwriter
to potential investors in the Offered Securities comply with the
requirements of the No-Action Letters;
(iii) on the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Offered Securities referred to
in Section 9(b)(ii) were last furnished by such Underwriter to each
prospective investor, on the date of delivery thereof to the Company
pursuant to or as contemplated by this Section 9 and on the Closing Date,
such Computational Materials and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact, or, when read in
conjunction with the Prospectus, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Offered Securities were furnished to a prospective investor
and on the date hereof, the Underwriters possessed, and on the date of
delivery of such materials to the Company pursuant to or as contemplated
by this Section 9 and on the Closing Date, the Underwriters will possess,
the capability, knowledge, expertise, resources and systems of internal
control necessary to ensure that such Computational Materials and/or ABS
Term Sheets conform to the representations and warranties of the
Underwriters contained in subparagraphs (ii) and (iii) above of this
paragraph (b);
(v) all Computational Materials and ABS Term Sheets with respect to
the Offered Securities furnished by such Underwriter to potential
investors contained and will contain a legend, prominently displayed on
the first page thereof, to the effect that the Company has not prepared,
reviewed or participated in the preparation of such Computational
Materials
-21-
or ABS Term Sheets, is not responsible for the accuracy thereof and has
not authorized the dissemination thereof;
(vi) all Collateral Term Sheets with respect to the Offered
Securities furnished by such Underwriter to potential investors contained
and will contain a legend, prominently displayed on the first page
thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior Collateral
Term Sheets; and
(vii) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS Term
Sheets or other materials relating to the Offered Securities (whether in
written, electronic or other format) to any potential investor unless such
potential investor has received a Prospectus prior to or at the same time
as the delivery of such Computational Materials, ABS Term Sheets or other
materials.
Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials or ABS Term
Sheets with respect to the Offered Securities included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriters from the Company of notice of such Corrected Collateral
Error or materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the Offered Securities to any
prospective investor, and agree that any such Computational Materials and/or ABS
Term Sheets furnished to prospective investors shall include a disclaimer in the
form set forth in paragraph (b)(v) above. The Underwriters agree that they will
not represent to potential investors that any Computational Materials and/or ABS
Term Sheets with respect to the Offered Securities were prepared or disseminated
on behalf of the Company.
(d) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act, it shall be
necessary in the opinion of the Underwriters or their counsel to amend or
supplement the Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or ABS Term Sheets provided by the
Underwriters pursuant to or as contemplated by this Section 9 or the omission to
state a material fact required, when considered in conjunction with the
Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Prospectus, not misleading, or if it shall be
necessary to amend or supplement any Current Report to comply with the
Securities Act or the rules thereunder, the Underwriters, at their expense,
promptly will prepare and furnish to the Company for filing with the Commission
an amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and shall distribute such amendment
or supplement to each prospective investor in the Offered Securities that
received such information
-22-
being amended or supplemented. Each Underwriter represents and warrants to the
Company, as of the date of delivery of such amendment or supplement to the
Company, that such amendment or supplement will not include any untrue statement
of a material fact or, when read in conjunction with the Prospectus, omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Company shall have no obligation to file
such amendment or supplement if the Company determines that (i) such amendment
or supplement contains any untrue statement of a material fact or, when read in
conjunction with the Prospectus, omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading (it
being understood, however, that the Company shall have no obligation to review
or pass upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d)) or (ii) such filing is not required under the Securities Act.
Notwithstanding the foregoing, none of the Underwriters makes any representation
or warranty as to whether any such amendment or supplement of Computational
Materials or ABS Term Sheets with respect to the Offered Securities included or
will include any untrue statement resulting directly from any Collateral Error
(except any Corrected Collateral Error, with respect to materials prepared after
the receipt by the Underwriters from the Company of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(e) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act, it shall be
necessary in the opinion of the Company or its counsel to amend or supplement
the Prospectus as a result of an untrue statement of a material fact contained
in any Computational Materials or ABS Term Sheets provided by the Underwriters
pursuant to or as contemplated by this Section 9 or the omission to state
therein a material fact required, when considered in conjunction with the
Prospectus, to be stated therein or necessary to make the statements therein,
when read in conjunction with the Prospectus, not misleading, or if it shall be
necessary to amend or supplement any Current Report to comply with the
Securities Act or the rules thereunder, the Company promptly will notify each
Underwriter of the necessity of such amendment or supplement, and the
Underwriters, at their expense (such expense to be allocated between them based
on the relative fault of the Underwriters) (or, if such amendment or supplement
is necessary due to a Collateral Error (except any Corrected Collateral Error,
with respect to materials prepared after the receipt by the Underwriters from
the Company of notice of such Corrected Collateral Error or materials
superseding or correcting such Corrected Collateral Error), at the expense of
the Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the Offered
Securities that received such information being amended or supplemented.
Notwithstanding the foregoing, none of the Underwriters makes any representation
or warranty as to whether any such amendment or supplement of Computational
Materials or ABS Term Sheets with respect to the Offered Securities included or
will include any untrue statement resulting directly from any Collateral Error
(except any Corrected Collateral Error, with respect to materials prepared after
the receipt by the Underwriters from the Company of notice
-23-
of such Corrected Collateral Error or materials superseding or correcting such
Corrected Collateral Error).
(f) The Underwriters (at their own expense) further agree to provide
to the Company any accountants' letters obtained relating to the Computational
Materials and/or ABS Term Sheets, which accountants' letters shall be addressed
to the Company or shall state that the Company may rely thereon; provided that
the Underwriters shall have no obligation to procure any such letter.
10. Substitution of Underwriters. (a) If any Underwriter shall fail
to take up and pay for the amount of the Offered Securities agreed by such
Underwriter to be purchased under this Agreement, upon tender of such Offered
Securities in accordance with the terms hereof, and the amount of the Offered
Securities not purchased does not aggregate more than 10% of the total amount of
the Offered Securities set forth in Schedule I hereof, the remaining
Underwriters shall be obligated to take up and pay for the Offered Securities
that the withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for the amount
of the Offered Securities agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being a "Defaulting Underwriter"), upon tender of
such Offered Securities in accordance with the terms hereof and thereof, and the
amount of the Offered Securities not purchased aggregates more than 10% of the
total amount of the Offered Securities set forth in Schedule I hereto, and
arrangements satisfactory to the remaining Underwriters [and the][, the] Company
[and the Issuer] for the purchase of such Securities by other persons are not
made within 36 hours thereafter, this Agreement shall terminate. In the event of
any such termination [the Company shall not] [neither the Company nor the Issuer
shall] be under any liability to any Underwriter (except to the extent provided
in [Section 5(g) and] Section 8 hereof) nor shall any Underwriter (other than a
Defaulting Underwriter ) be under any liability to the Company (except to the
extent provided in Sections 8 and 9 hereof) [or the Issuer]. Nothing herein
shall be deemed to relieve any Defaulting Underwriter from any liability it may
have to the Company [, the Issuer] or any other Underwriter by reason of its
failure to take up and pay for Offered Securities as agreed by such Defaulting
Underwriter.
11. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters by notice given to the Company [and
the Issuer] prior to delivery of and payment for all Offered Securities if [(i)
trading in securities of the Company [Issuer] or any affiliate on the New York
Stock Exchange shall have been suspended or limited, or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium shall have
been declared by either federal or New York State authorities,] or (iii) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the reasonable judgment of the Underwriters
after consultation with the Company, impractical to market the Offered
Securities.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and/or other statements of
the Company [and the Issuer] or
-24-
[its] [their] officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter [or][,] the Company [or
the Issuer] or any of the officers, directors or controlling persons referred to
in Section 8 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 7, 8 and 9 hereof shall survive the
termination or cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to
them at the addresses set forth on Schedule I hereto; or, if sent to the Company
will be mailed, delivered or either telegraphed or transmitted by telecopier and
confirmed to it at [__________________], Attention: [______], with a copy to
Sidley & Austin, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq. [; or, if sent to the Issuer, will be mailed, delivered or
either telegraphed or transmitted by telecopier and confirmed to it at
[______________________], Attention [__________________], with a copy to Sidley
& Austin, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Esq.]
14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
15. Applicable Law; Counterparts. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
-25-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
[, the Issuer] and the several Underwriters.
Very truly yours,
CRIIMI MAE CMBS CORP.
By:
Name:
Title:
[CRIIMI MAE COMMERCIAL MORTGAGE
TRUST [I]
By:
-----------------------------------------
Not in its individual capacity but solely
as Owner Trustee
By:
Name:
Title:]
Accepted at New York, New York
as of the date first written
above.
[NAME OF LEAD UNDERWRITER]
By:
Name:
Title:
-26-
SCHEDULE I
[Bond] Principal or Notional
Amount of relevant
Underwriter Class of Offered
(and address) Class Securities to be Purchased
------------- ----- --------------------------
-27-
SCHEDULE II
Registration Statement No.
Basic Prospectus dated ___________, 19__
Prospectus Supplement dated ___________, 19__
Title of Securities: [Mortgage Pass-Through
Certificates] [Collateralized Mortgage
Obligations] Series ____.
Cut-off Date: __________, 19__
Closing: ___________ [A.M. P.M.] __________, 19__
at the offices of
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Manner of payment of Security Purchase Price:
Office for delivery of non-book entry Offered Securities:
Office for payment for Offered Securities or wire transfer information:
Office for checking non-book entry Offered Securities:
-28-
Initial Aggregate [Bond] Principal
(or in the case of Class __, Notional)
Class Designation Amount of Class (1) Initial [Pass-Through][Interest] Rate Purchase Price(2) Rating(3)
----------------- --------------------- ------------------------------------- ----------------- ---------
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
$ % %
----------
(1) Subject to a variance of plus or minus ___%
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Securities to be purchased.
The purchase price for each class of the Offered Securities will include
accrued interest at the initial [Pass-Through] [Interest] Rate therefor on
the aggregate stated or notional amount, as applicable, thereof to be
purchased from the Cut-off Date to but not including the Closing Date.
(3) By each of _______________________ and ____________________.
-29-