SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
DATE OF REPORT: NOVEMBER 3, 1999
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(Date of earliest event reported)
ASSET SECURITIZATION CORPORATION,
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1999-C2
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(Exact name of registrant as specified in its charter)
Delaware 333-53859 13-3672337
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(State or Other (Commission (I.R.S. Employer
Jurisdiction File Number) Identification No.)
of Incorporation)
Two World Financial Center, Building B, New York, New York 10281
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Address of Principal Executive Office
Registrant's telephone number, including area code: (212) 667-9300
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ITEM 5. OTHER EVENTS.
Attached as Exhibit 99.1 to this Current Report is the Underwriting
Agreement (as defined below) for the Commercial Mortgage Asset Trust, Commercial
Mortgage Pass-Through Certificates, Series 1999-C2 (the "Certificates"). On
October 15, 1999, Goldman, Sachs & Co. ("Goldman") and Nomura Securities
International, Inc. ("NSI"), as representatives of the Underwriters (Goldman,
NSI and Donaldson, Lufkin & Jenrette Securities Corporation, the
"UNDERWRITERS"), entered into an Underwriting Agreement and an Amendment No. 1
to the Underwriting Agreement, both dated October 15, 1999, with Asset
Securitization Corporation, The Capital Company of America LLC and Nomura
Holding America Inc. in connection with the sale of the Class A-1, Class A-2,
Class A-3, Class CS-1, Class X and Class F Certificates, along with a portion of
the Class B, Class C, Class D and Class E Certificates (the "Public
Certificates"). The Public Certificates were offered pursuant to a prospectus
and a prospectus supplement, each dated October 15, 1999.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
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Item 601(a) of
Exhibit No. Regulation S-K Description
Exhibit No.
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99.1 1 Underwriting Agreement, dated
October 15, 1999
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<PAGE>
Pursuant to the requirements of the Securities Act of 1934, the
Registrant has duly caused this report to be signed on behalf of the Registrant
by the undersigned thereunto duly authorized.
ASSET SECURITIZATION CORPORATION
By: /S/ BRAD ALTBERGER
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Name: Brad Altberger
Title: Vice President
Date: November 3, 1999
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Paper (P) or Electronic (E)
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99.1 Underwriting Agreement E
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
UNDERWRITING AGREEMENT
October 15, 1999
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Nomura Securities International
Two World Financial Center
17th Floor
New York, New York 10281-1198
Ladies and Gentlemen:
Asset Securitization Corporation, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to sell
to the underwriters named in Schedule I hereto (the "Underwriters"), for whom
Goldman, Sachs & Co. ("Goldman Sachs") and Nomura Securities International, Inc.
("NSI") are acting as co-representatives (in such capacity, the
"Representatives"), those classes (each, a "Class") of the Commercial Mortgage
Asset Trust ("CMAT"), Commercial Mortgage Pass-Through Certificates, Series
1999-C2, that are specified in Schedule II hereto (the classes so specified, the
"Offered Certificates"). The Offered Certificates will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") to be
dated as of October 11, 1999 (the "Cut-off Date"), among the Company as
depositor, "), BNY Asset Solutions LLC as servicer (the "Servicer"), Lennar
Partners, Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association as trustee (the "Trustee") and ABN AMRO Bank N.V. as fiscal
agent (the "Fiscal Agent"). The Offered Certificates will evidence undivided
interests in a trust fund (the "Trust Fund") to be established by the Company
pursuant to the Pooling and Servicing Agreement. The Trust Fund will consist
primarily of a pool (the "Mortgage Pool") of conventional, monthly pay,
commercial and multifamily mortgage loans (the "Mortgage Loans") transferred by
the Company to the Trust Fund and listed in an attachment to the Pooling and
Servicing Agreement. Two 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 the "Upper-Tier REMIC" and the "Lower-Tier REMIC".
One or more portions of the Trust Fund are each also intended to constitute a
grantor trust under the Internal Revenue Code of 1986 (the "Code"). Eleven other
classes of the CMAT Commercial Mortgage Pass-Through Certificates, Series
1999-C2 (such other classes, the "Private Certificates", and, collectively with
the Offered Certificates, the "Certificates"), are also to be issued pursuant to
the Pooling and Servicing Agreement but do not form a part of this offering. The
Offered Certificates are described more fully in the Base Prospectus and the
Prospectus Supplement (each of which terms is defined below), which the Company
has furnished to each Representative. Capitalized terms used but not defined
herein have the respective meanings assigned thereto in the Prospectus
Supplement.
The Company has acquired, or will acquire on or before the
Closing Date (as defined in Section 3), certain of the Mortgage Loans (the "NHA
Mortgage Loans") from Nomura Holding America Inc. ("NHA") pursuant to a Mortgage
Loan Purchase and Sale Agreement dated as of October 11, 1999 (the "NHA/Company
Mortgage Loan Purchase and Sale Agreement"), between NHA as seller and the
Company as purchaser. The Company has acquired, or will acquire on or before the
Closing Date, the remaining Mortgage Loans (the "CCA Mortgage Loans") from The
Capital Company of America LLC ("CCA") pursuant to a Mortgage Loan Purchase and
Sale Agreement dated as of October 11, 1999 (the "CCA/Company Mortgage Loan
Purchase and Sale Agreement", and, together with the NHA/Company Mortgage Loan
Purchase and Sale Agreement, the "Mortgage Loan Purchase and Sale Agreements").
1. Representations and Warranties of the Company, NHA and CCA.
(a) The Company represents and warrants to, and agrees with, each Underwriter
that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No.
333-53859)on Form S-3 for the registration under the Securities Act of
1933, as amended (the "Act"), of the Offered Certificates, which
registration statement has become effective and copies of which
(together with all exhibits thereto and all documents incorporated by
reference therein) have heretofore been delivered to the
Representatives for each of the other Underwriters. The Company meets,
and upon initial issuance of the Offered Certificates will meet, the
requirements for use of Form S-3 under the Act. Such registration
statement meets the requirements set forth in Rule 415(a)(1) under the
Act and complies in all other material respects with such Rule. The
Company proposes to file with the Commission pursuant to Rule 424
under the Act a supplement, dated the date specified in Schedule II
hereto, to the prospectus, dated the date specified in Schedule II
hereto, relating to the Offered Certificates and the method of
distribution thereof and has previously advised the Underwriters of
all further information (financial and other) with respect to the
Offered Certificates set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date hereof is
hereinafter called the "Registration Statement"; such prospectus, in
the form in which it will be filed with the Commission pursuant to
Rule 424 under the Act, is hereinafter called the "Base Prospectus";
such supplement to the Base Prospectus, in the form in which it will
be filed with the Commission pursuant to Rule 424 of the Act, is
hereinafter called the "Prospectus Supplement"; and the Base
Prospectus and the Prospectus Supplement together are hereinafter
called the "Prospectus". Any preliminary form of the Prospectus
Supplement which has heretofore been filed with the Commission
pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus
Supplement", and any Preliminary Prospectus Supplement together with
the prospectus it supplements is hereinafter called a "Preliminary
Prospectus". Any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of the corresponding Preliminary
Prospectus Supplement or the Prospectus Supplement, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of the corresponding Preliminary
Prospectus Supplement or the Prospectus Supplement, as the case may
be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any annual report or other information or documentation
that is incorporated by reference in the Registration Statement and
that is filed on behalf of the Trust Fund pursuant to Sections 13(a)
or 15(d) of the Exchange Act after the effective date of the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the Offered Certificates in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing). The
Company has not filed any post-effective amendment to the Registration
Statement and will not, without your prior consent (which consent
shall not be unreasonably withheld), file any other amendment to the
Registration Statement (unless such amendment does not relate to or
affect the Offered Certificates) or make any change in the Base
Prospectus or the Prospectus Supplement until after the end of the
period during which a prospectus is required to be delivered by the
Underwriters (or by any dealer that is part of the selling group) to
purchasers of the Offered Certificates under the Act. The Company, as
depositor with respect to the Trust Fund, will file with the
Commission within fifteen days of the issuance of the Offered
Certificates a report on Form 8-K setting forth specific information
concerning the Offered Certificates (the "Form 8-K").
(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 Act, when, prior to the Closing Date,
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, (A) the Registration Statement,
as amended as of any such time, and the Prospectus, as amended or
supplemented as of any such time, complied or will comply in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder, (B) 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
(C) 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
(X) the information contained in or omitted from the Registration
Statement or the Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with written information
furnished to the Company by either Representative, or by any
Underwriter through either Representative, specifically for use in the
preparation thereof, or (Y) the information contained in or omitted
from any Current Report (as defined in Section 5(e) 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), except to the extent that any such statement
or omission is based on statements or information (or omissions
therefrom) provided by the Company to any Underwriter.
(iii) As of the date hereof, when the Prospectus Supplement
is first filed pursuant to Rule 424 under the Act, when, prior to the
Closing Date, any other amendment to the Registration Statement
becomes effective, when any supplement to the Prospectus is filed with
the Commission, and at the Closing Date, there has not and will not
have been (A) any request by the Commission for any further amendment
of the Registration Statement or the Prospectus or for any additional
information, (B) 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 (C)
any notification with respect to the suspension of the qualification
of the Offered Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has been duly qualified or registered as a foreign
corporation for the transaction of business and is in good standing
under the laws of all jurisdictions in which it owns or leases
property of a nature or transacts business of a type that would
require such qualifications or in which the failure to so qualify or
be in good standing could, individually or in the aggregate, have a
material adverse effect on the business, condition or properties of
the Company.
(v) The Company has all requisite power and authority
(corporate and other) and all requisite authorizations, approvals,
orders, 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 Prospectus and to execute, deliver and perform this Agreement and
the Pooling and Servicing Agreement, except such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution by the Underwriters of the Offered
Certificates. All such authorizations, approvals, orders, licenses,
certificates and permits are in full force and effect and, except as
otherwise set forth or contemplated in the Registration Statement or
the Prospectus, there are no legal or governmental proceedings pending
or, to the best of the Company's knowledge, threatened, that would
result in a material modification, suspension or revocation thereof.
(vi) This Agreement has been and, as of the Closing Date,
the Pooling and Servicing Agreement and the Mortgage Loan Purchase and
Sale Agreements will have been, duly authorized, executed and
delivered by the Company.
(vii) Assuming due authorization, execution and delivery by
the other parties thereto, as of the Closing Date, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase and Sale Agreements
will each constitute a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general principles of equity.
(viii) The Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus; the Offered
Certificates 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.
(ix) The issue and sale of the Offered Certificates and the
compliance by the Company with all of the provisions of this Agreement
and the Pooling and Servicing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Offered Certificates or the consummation
by the Company of the transactions contemplated by this Agreement or
the Pooling and Servicing Agreement, except such as have been, or will
have been prior to the Closing Date, obtained under the Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Offered
Certificates by the Underwriters;
(x) Other than as set forth or contemplated in the
Prospectus Supplement, there are no legal or governmental proceedings
pending, and at the Closing Date there will be 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, properties or prospects of
the Company, and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(xi) As of the date hereof and as of the Closing Date, there
are and will be 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
(A) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement or the Offered Certificates, (B) seeking to
prevent the issuance of the Offered Certificates or the consummation
of any of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, (C) which might materially and
adversely affect the validity or enforceability of this Agreement, the
Pooling and Servicing Agreement, either Mortgage Loan Purchase and
Sale Agreement or the Offered Certificates or (D) seeking to affect
adversely the federal income tax attributes, or attributes under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
of the Offered Certificates described in the Prospectus.
(xii) Since December 31, 1998, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, operations,
financial condition, properties or assets of the Company, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented or as disclosed to the Representatives during the meeting
that occurred on September 2, 1999 between representatives of Goldman
Sachs and the Chief Financial Officer of NHA (the "September 2
Meeting").
(xiii) There are no contracts, indentures or other documents
of a character required by the Act or by the rules and regulations
thereunder to be described or referred to in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which have not been so described or referred to
therein or so filed or incorporated by reference as exhibits thereto.
(xiv) Any taxes, fees and other governmental charges payable
by the Company in connection with the execution and delivery of this
Agreement and the Pooling and Servicing Agreement or the issuance and
sale of the Certificates (other than such federal, state and local
taxes as may be payable on the income or gain recognized therefrom)
have been or will be paid at or prior to the Closing Date.
(xv) Immediately prior to the assignment of the Mortgage
Loans to the Trustee, the Company will have good title to, and will be
the sole owner of, each Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance. At the Closing
Date, the Company will have full power and authority to sell and
deliver the Mortgage Loans to the Trustee under the Pooling and
Servicing Agreement and will have duly authorized such assignment and
delivery to the Trustee by all necessary actions.
(xvi) At the Closing Date, the Mortgage Loans will have been
duly and validly assigned and delivered by the Company to the Trustee
under the Pooling and Servicing Agreement.
(xvii) As of the Closing Date, each of the Mortgage Loans
will conform, in all material respects, to the descriptions thereof in
the Prospectus, 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 the representations and warranties
with respect to the Mortgage Loans made by NHA and CCA in their
respective Mortgage Loan Purchase and Sale Agreements, and such
representations and warranties will be true and correct in all
material respects. The written information (including information on
electromagnetic tape or that was otherwise provided in electronic
form) regarding the Mortgage Loans that was provided to the Rating
Agencies or the Underwriters by the Company, NHA, CCA or any of their
affiliates (including any supplement or amendment thereto, the
"Mortgage Pool Information"), taken together with the Prospectus
Supplement, will not, as of the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(xviii) The Trust Fund is not, and neither the issuance and
sale of the Offered Certificates in the manner contemplated by the
Prospectus nor the activities of the Trust Fund pursuant to the
Pooling and Servicing Agreement will cause the 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.
(xix) Under U.S. generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Company will report
the transfer of the Mortgage Loans to the Trustee in exchange for the
Certificates and the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement as a sale of the interest in
the Mortgage Loans evidenced by the Offered Certificates.
(xx) None of the Company or any of its affiliates (other
than NSI) has taken or authorized any person to take any action that
would constitute an "offer to sell" the Offered Certificates in
violation of Section 5(c) of the Act. Nor has the Company or any of
its affiliates mailed, published, disseminated, distributed,
transmitted, furnished or otherwise made available to any person or
entity a prospectus (within the meaning of Section 2(a)(10) of the
Act) with respect to the Offered Certificates, other than the
Prospectus or any Preliminary Prospectus.
(b) NHA represents and warrants to, and agrees with, each
Underwriter that:
(i) NHA has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and has been duly qualified or registered as a foreign
corporation for the transaction of business and is in good standing
under the laws of all jurisdictions in which it owns or leases
property of a nature or transacts business of a type that would
require such qualifications or in which the failure to so qualify or
be in good standing could, individually or in the aggregate, have a
material adverse effect on the business, condition or properties of
NHA.
(ii) NHA has all requisite power and authority (corporate
and other) and all requisite authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental or
regulatory officials and bodies to own its properties, to conduct its
business and to execute, deliver and perform its obligations under
this Agreement and each Mortgage Loan Purchase and Sale Agreement. All
such authorizations, approvals, orders, licenses, certificates and
permits are in full force and effect, and there are no legal or
governmental proceedings pending or, to the best of NHA's knowledge,
threatened, that would result in a material modification, suspension
or revocation thereof.
(iii) This Agreement has been and, as of the Closing Date,
the Mortgage Loan Purchase and Sale Agreements will each have been,
duly authorized, executed and delivered by NHA.
(iv) Assuming due authorization, execution and delivery by
the other parties thereto, as of the Closing Date, each Mortgage Loan
Purchase and Sale Agreement will constitute a valid and legally
binding obligation of NHA, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
(v) Compliance by NHA with this Agreement and the Mortgage
Loan Purchase and Sale Agreements will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which NHA is a party or by which
NHA is bound or to which any of the property or assets of NHA is
subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or the by-laws of NHA
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over NHA, or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the entry by NHA into this
Agreement or either of the Mortgage Loan Purchase and Sale Agreements
or the performance by NHA of its obligations under this Agreement or
either of the Mortgage Loan Purchase and Sale Agreements except such
as have already been obtained.
(vi) There are no legal or governmental proceedings pending,
and at the Closing Date there will be no legal or governmental
proceedings pending, to which NHA is a party or of which any property
of NHA is the subject which, if determined adversely to NHA, would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
properties or prospects of NHA, and to the best of NHA's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vii) As of the date hereof and as of the Closing Date,
there are and will be no actions or proceedings against, or
investigations of, NHA pending, or, to the knowledge of NHA,
threatened, before any court, administrative agency or other tribunal
(A) asserting the invalidity of this Agreement or either Mortgage Loan
Purchase and Sale Agreement, (B) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or either
Mortgage Loan Purchase and Sale Agreement, or (C) which might
materially and adversely affect the validity or enforceability of this
Agreement or either Mortgage Loan Purchase and Sale Agreement.
(viii) Since December 31, 1998, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, operations,
financial condition, properties or assets of NHA, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented
or as disclosed to the Representatives during the September 2 Meeting.
(ix) Any taxes, fees and other governmental charges payable
by NHA in connection with the execution and delivery of this Agreement
and the Mortgage Loan Purchase and Sale Agreements or the sale of the
NHA Mortgage Loans (other than such federal, state and local taxes as
maybe payable on the income or gain recognized therefrom) have been or
will be paid at or prior to the Closing Date.
(x) Immediately prior to the assignment of the NHA Mortgage
Loans to the Company, NHA will have good title to, and will be the
sole owner of, each NHA Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance. At the Closing
Date, NHA will have full power and authority to sell and deliver the
NHA Mortgage Loans to the Company under the NHA/Company Mortgage Loan
Purchase and Sale Agreement and will have duly authorized such
assignment and delivery to the Company by all necessary actions.
(xi) At the Closing Date, the NHA Mortgage Loans will have
been duly and validly assigned and delivered by NHA to the Company
under the NHA/Company Mortgage Loan Purchase and Sale Agreement.
(xii) As of the Closing Date, each of the NHA Mortgage Loans
will conform, in all material respects, to the descriptions thereof in
the Prospectus, and on the Closing Date, NHA (pursuant to the
NHA/Company Mortgage Loan Purchase and Sale Agreement) will make to
the Company certain representations and warranties with respect to the
NHA Mortgage Loans, and such representations and warranties will be
true and correct in all material respects. The written information
(including information on electromagnetic tape or that was otherwise
provided in electronic form) regarding the NHA Mortgage Loans that was
provided to the Rating Agencies or the Underwriters by the Company,
NHA, CCA or any of their affiliates (including any supplement or
amendment thereto, the "NHA Mortgage Loan Information"), taken
together with the Prospectus Supplement, will not, as of the Closing
Date, contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(xiii) Under GAAP and for federal income tax purposes, NHA
will report the transfer of the NHA Mortgage Loans to the Company
pursuant to the NHA/Company Mortgage Loan Purchase and Sale Agreement
as a sale of the NHA Mortgage Loans.
(c) CCA represents and warrants to, and agrees with, each
Underwriter that:
(i) CCA has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware and has been duly qualified or registered as a foreign
entity for the transaction of business and is in good standing under
the laws of all jurisdictions in which it owns or leases property of a
nature or transacts business of a type that would require such
qualifications or in which the failure to so qualify or be in good
standing could, individually or in the aggregate, have a material
adverse effect on the business, condition or properties of CCA.
(ii) CCA has all requisite power and authority and all
requisite authorizations, approvals, orders, licenses, certificates
and permits of and from all governmental or regulatory officials and
bodies to own its properties, to conduct its business and to execute,
deliver and perform its obligations under this Agreement and the
CCA/Company Mortgage Loan Purchase and Sale Agreement. All such
authorizations, approvals, orders, licenses, certificates and permits
are in full force and effect, and there are no legal or governmental
proceedings pending or, to the best of CCA's knowledge, threatened,
that would result in a material modification, suspension or revocation
thereof.
(iii) This Agreement has been and, as of the Closing Date,
the CCA/Company Mortgage Loan Purchase and Sale Agreement will have
been, duly authorized, executed and delivered by CCA.
(iv) Assuming due authorization, execution and delivery by
the other parties thereto, as of the Closing Date, the CCA/Company
Mortgage Loan Purchase and Sale Agreement will constitute a valid and
legally binding obligation of CCA, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general principles of equity.
(v) Compliance by CCA with this Agreement and the
CCA/Company Mortgage Loan Purchase and Sale Agreement will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to
which CCA is a party or by which CCA is bound or to which any of the
property or assets of CCA is subject, nor will such action result in
any violation of the provisions of the organizational documents of CCA
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over CCA, or any of
its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the entry by CCA into this
Agreement or the CCA/Company Mortgage Loan Purchase and Sale Agreement
or the performance by CCA of its obligations under this Agreement or
the CCA/Company Mortgage Loan Purchase and Sale Agreement except such
as have already been obtained.
(vi) There are no legal or governmental proceedings pending,
and at the Closing Date there will be no legal or governmental
proceedings pending, to which CCA is a party or of which any property
of CCA is the subject which, if determined adversely to CCA, would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
properties or prospects of CCA, and to the best of CCA's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vii) As of the date hereof and as of the Closing Date,
there are and will be no actions or proceedings against, or
investigations of, CCA pending, or, to the knowledge of CCA,
threatened, before any court, administrative agency or other tribunal
(A) asserting the invalidity of this Agreement or the CCA/Company
Mortgage Loan Purchase and Sale Agreement, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement
or the CCA/Company Mortgage Loan Purchase and Sale Agreement, or (C)
which might materially and adversely affect the validity or
enforceability of this Agreement or the CCA/Company Mortgage Loan
Purchase and Sale Agreement.
(viii) Since December 31, 1998, there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, operations,
financial condition, properties or assets of CCA, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented
or as disclosed to the Representatives during the September 2 Meeting.
(ix) Any taxes, fees and other governmental charges payable
by CCA in connection with the execution and delivery of this Agreement
and the CCA/Company Mortgage Loan Purchase and Sale Agreement or the
sale of the CCA Mortgage Loans (other than such federal, state and
local taxes as may be payable on the income or gain recognized
therefrom) have been or will be paid at or prior to the Closing Date.
(x) Immediately prior to the assignment of the CCA Mortgage
Loans to the Company, CCA will have good title to, and will be the
sole owner of, each CCA Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance. At the Closing
Date, CCA will have full power and authority to sell and deliver the
CCA Mortgage Loans to the Company under the CCA/Company Mortgage Loan
Purchase and Sale Agreement and will have duly authorized such
assignment and delivery to the Company by all necessary actions.
(xi) At the Closing Date, the CCA Mortgage Loans will have
been duly and validly assigned and delivered by CCA to the Company
under the CCA/Company Mortgage Loan Purchase and Sale Agreement.
(xii) As of the Closing Date, each of the CCA Mortgage Loans
will conform, in all material respects, to the descriptions thereof in
the Prospectus, and on the Closing Date, CCA (pursuant to the
CCA/Company Mortgage Loan Purchase and Sale Agreement) will make to
the Company certain representations and warranties with respect to the
CCA Mortgage Loans, and such representations and warranties will be
true and correct in all material respects. The written information
(including information on electromagnetic tape or that was otherwise
provided in electronic form) regarding the CCA Mortgage Loans that was
provided to the Rating Agencies or the Underwriters by the Company,
NHA, CCA or any of their affiliates (including any supplement or
amendment thereto, the "CCA Mortgage Loan Information"), taken
together with the Prospectus Supplement, will not, as of the Closing
Date, contain any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(xiii) Under GAAP and for federal income tax purposes, CCA
will report the transfer of the CCA Mortgage Loans to the Company
pursuant to the CCA/Company Mortgage Loan Purchase and Sale Agreement
as a sale of the CCA Mortgage Loans.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, the principal amount of each Class of
the Offered Certificates set forth opposite each such Underwriter's name in
Schedule I hereto.
The purchase price for each Class of the Offered Certificates as
a percentage of the aggregate principal 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 Certificates interest accrued in respect of
each Class of the Offered Certificates at the interest rate applicable to such
Class from the Cut-off Date to but not including the Closing Date.
3. DELIVERY AND PAYMENT. THE CLOSING FOR THE PURCHASE AND SALE OF
THE OFFERED CERTIFICATES CONTEMPLATED HEREBY (THE "CLOSING"), SHALL BE MADE AT
THE DATE, LOCATION AND TIME OF DELIVERY SET FORTH IN SCHEDULE II HERETO, OR SUCH
LATER DATE AS SHALL BE MUTUALLY ACCEPTABLE TO THE UNDERWRITERS AND THE COMPANY
(SUCH DATE AND TIME OF PURCHASE AND SALE OF THE OFFERED CERTIFICATES BEING
HEREIN CALLED THE "CLOSING DATE"). DELIVERY OF THE OFFERED CERTIFICATES WILL BE
MADE IN BOOK-ENTRY FORM, THROUGH THE FACILITIES OF THE DEPOSITORY TRUST COMPANY
("DTC") IN THE UNITED STATES AND CEDEL BANK, SOCIETE ANONYME ("CEDEL") AND THE
EUROCLEAR SYSTEM ("EUROCLEAR") IN EUROPE. EACH CLASS OF OFFERED CERTIFICATES
WILL BE REPRESENTED BY ONE OR MORE DEFINITIVE GLOBAL CERTIFICATES TO BE
DEPOSITED BY OR ON BEHALF OF THE COMPANY WITH DTC. DELIVERY OF THE OFFERED
CERTIFICATES SHALL BE MADE TO THE SEVERAL UNDERWRITERS AGAINST PAYMENT BY THE
SEVERAL UNDERWRITERS OF THE PURCHASE PRICE THEREOF TO OR UPON THE ORDER OF THE
COMPANY BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS OR SUCH OTHER METHOD AS
MAY BE ACCEPTABLE TO THE COMPANY.
THE COMPANY AGREES TO HAVE THE OFFERED CERTIFICATES AVAILABLE FOR
INSPECTION, CHECKING AND PACKAGING BY THE UNDERWRITERS IN NEW YORK, NEW YORK,
NOT LATER THAN 10:00 A.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 Certificates for sale to the public as
set forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) For so long as the delivery by the Underwriters (or by any
dealer that is part of the selling group) is required in connection with the
offering and sale of the Offered Certificates, the Company will make no further
amendment or supplement to the Registration Statement or (unless such amendment
does not relate to or affect the Offered Certificates) Prospectus as amended or
supplemented from time to time hereafter which shall be reasonably disapproved
by the Representatives promptly after reasonable notice thereof. The Company
will advise the Representatives promptly of any proposal or request to amend the
Registration Statement (unless such amendment does not relate to or affect the
Offered Certificates) or supplement the Prospectus after the Closing Date and
furnish the Representatives with copies thereof. The Company will file promptly
all reports, documentation and information required to be filed on behalf of the
Trust Fund with the Commission pursuant to Section 13(a), 13(c),14 or 15(d) of
the Exchange Act for so long as the delivery by the Underwriters (or by any
dealer that is part of the selling group) of a prospectus is required in
connection with the offering or sale of the Offered Certificates, and during
such same period will advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
the Registration Statement, of any suspension of the qualification of the
Offered Certificates for offering or sale in any jurisdiction known to the
Company, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information. The
Company will, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any prospectus relating to the Offered
Certificates or suspending any such qualification, promptly use its best efforts
to obtain the withdrawal of such order.
(b) Promptly from time to time, the Company will take such action
as the Representatives may reasonably request to qualify the Offered
Certificates for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and will comply with such laws
so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Offered Certificates, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to take any action
that would subject it to general or unlimited service of process in any
jurisdiction.
(c) Prior to 10:00 a.m., New York City time, on the New York
business day next succeeding the date of this Agreement and from time to time,
for so long as a prospectus is required to be delivered by the Underwriters (or
by any dealer that is part of the selling group) to purchasers of the Offered
Certificates under the Act (or, with respect to any particular Underwriter, if
longer, for so long as such Underwriter holds an interest in Offered
Certificates) but in no event beyond the close of business, New York City time,
on the 270th day following the Closing Date, the Company will furnish the
Underwriters with copies of the Prospectus as amended or supplemented in such
quantities as the Representatives may reasonably request. If the delivery of a
prospectus is required at any time in connection with the offering or sale of
the Offered Certificates and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, the Company will notify the Representatives and, upon their
request, file such document and prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance.
(d) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will deliver or cause to be delivered to the
Underwriters the annual statements as to compliance and the annual statements of
a firm of independent public accountants, furnished to the Trustee by the
Servicer and the Special Servicer pursuant to Sections 3.14 and 3.15 of the
Pooling and Servicing Agreement, as soon as such statements are furnished to the
Company.
(e) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to the
Offered Certificates that are delivered by an Underwriter to the Company
pursuant to Section 9 to be filed with the Commission on a Current Report on
Form 8-K of the Company (a "Current Report") pursuant to Rule 13a-11 under the
Exchange Act on the business day immediately following the later of (i) the day
on which such Computational Materials and Structural Term Sheets are delivered
to counsel for the Company by an Underwriter prior to 1:00 p.m., New York City
time, and (ii) the date on which this Agreement is executed and delivered. The
Company will cause one Collateral Term Sheet (as defined in Section 9 below)
with respect to the Offered Certificates that is delivered by the Underwriters
to the Company in accordance with the provisions of Section 9 to be filed with
the Commission on a Current Report pursuant to Rule 13a-11 under the Exchange
Act 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
1:00 p.m., New York City time. In addition, if at any time prior to the
availability of the Prospectus Supplement, the Underwriters have delivered to
any prospective investor a subsequent Collateral Term Sheet that reflects, in
the reasonable judgment of the Underwriters and the Company, a material change
in the characteristics of the Mortgage Loans from those on which a Collateral
Term Sheet with respect to the Offered Certificates previously filed with the
Commission was based, the Company will cause any such Collateral Term Sheet that
is delivered by the Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such Collateral Term
Sheet is delivered to counsel for the Company by the Underwriters prior to 2:00
p.m., New York City time. In each case, the Company will promptly advise the
Underwriters when such Current Report has been so filed. Each such Current
Report shall be, and shall so state that it is, incorporated by reference in the
Prospectus and the Registration Statement.
6. Expenses. The Company will pay or cause the payment of the
following: (i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Offered Certificates
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) all of the
Underwriters' reasonable out-of-pocket costs and expenses (including the fees,
disbursements and expenses of the Underwriters' counsel and other third parties
retained by the Underwriters) in connection with the issue and offering of the
Offered Certificates (except as otherwise provided in Section 8 and other than
those solely belonging to any Underwriter which shall default in its obligation
to purchase the Offered Certificates which it has agreed to purchase hereunder);
(iii) the cost of printing or producing any Agreement among Underwriters, this
Agreement, the Pooling and Servicing Agreement, any Blue Sky and Legal
Investment memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Offered Certificates, including the fees and disbursements of counsel for
the Underwriters in connection with any of the foregoing; (iv) all expenses in
connection with the qualification of the Offered Certificates for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky and Legal Investment
memoranda; (v) any fees charged by the Rating Agencies for rating the Offered
Certificates; (vi) the cost of preparing the Offered Certificates; (vii) the
fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Pooling and
Servicing Agreement and the Offered Certificates; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6. On the Closing Date, the
Company shall deposit $475,000 into an account held at a depository institution
and in a manner satisfactory to the Representatives, which funds will be
available to satisfy the Company's obligations under this Section 6, with the
Company responsible for any shortfall.
7. Conditions to the Obligations to the Underwriters. The
obligations of the Underwriters to purchase the Offered Certificates as provided
in this Agreement shall be subject, in the discretion of the Representatives, to
the accuracy of the representations and warranties on the part of the Company,
NHA and CCA contained herein as of the date hereof and as of the Closing Date,
to the accuracy of the statements of the Company, NHA and CCA made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
with respect to the Offered Certificates:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been initiated or threatened; and the Prospectus Supplement
shall have been filed with the Commission within the time period prescribed by
the Commission.
(b) The Underwriters shall have received from the Company a
certificate, dated the Closing Date and executed by an executive officer of the
Company, to the effect that: (i) the representations and warranties of the
Company in this Agreement, the Pooling and Servicing Agreement and the Mortgage
Loan Purchase and Sale Agreements are true and correct in all material respects
at and as of the Closing Date with the same effect as if made on the Closing
Date; and (ii) the Company has in all material respects complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied pursuant to this Agreement, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase and Sale Agreements, at or prior to the Closing Date.
(c) The Underwriters shall have received with respect to the
Company a good standing certificate from the Secretary of State of the State of
Delaware, dated not earlier than 30 days prior to the Closing Date.
(d) The Underwriters shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the effect that: (i) each individual who, as an
officer or representative of the Company, signed this Agreement, the Mortgage
Loan Purchase and Sale Agreements, the Pooling and Servicing Agreement or any
other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, in any Mortgage Loan
Purchase and Sale Agreement or in the Pooling and Servicing Agreement, was at
the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of such party) has occurred
since the date of the good standing certificate referred to in paragraph (c)
above which has affected the good standing of the Company under the laws of the
state of its incorporation. Such certificate shall be accompanied by true and
complete copies (certified as such by the Secretary or an assistant secretary of
the Company) of the certificate of incorporation and by-laws of the Company, as
in effect on the Closing Date, and of the resolutions of the Company and any
required shareholder consent relating to the transactions contemplated in this
Agreement, the Mortgage Loan Purchase and Sale Agreements and the Pooling and
Servicing Agreement.
(e) Cleary, Gottlieb, Steen & Hamilton, counsel for the
Underwriters, shall have furnished to the Underwriters such opinion or opinions,
dated the Closing Date, with respect to the Pooling and Servicing Agreement, the
Offered Certificates, the Registration Statement, the Prospectus Supplement and
other related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters.
(f) In-house counsel for the Company shall have furnished to the
Underwriters its written opinion, dated the Closing Date, substantially in the
form attached hereto as Exhibit A-1, with such changes as are satisfactory to or
reasonably requested by the Representatives.
(g) Cadwalader, Wickersham & Taft ("Cadwalader"), as counsel to
the Company, shall have furnished to the Underwriters its written opinions,
dated the Closing Date, substantially in the forms attached hereto as Exhibits
A-2 and A-3, with such changes as are satisfactory to or reasonably requested by
the Representatives.
(h) The Underwriters shall have received from CCA a certificate,
dated the Closing Date and executed by an executive officer of CCA, to the
effect that: (i) the representations and warranties of CCA in this Agreement and
the CCA/Company Mortgage Loan Purchase and Sale Agreement are true and correct
in all material respects at and as of the Closing Date with the same effect as
if made on the Closing Date; and (ii) CCA has in all material respects complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied pursuant to the CCA/Company Mortgage Loan Purchase and
Sale Agreement at or prior to the Closing Date.
(i) The Underwriters shall have received with respect to CCA a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 15 days prior to the Closing Date.
(j) The Underwriters shall have received from the Secretary or an
assistant secretary of CCA, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (i) each individual who, as an officer or
representative of CCA, signed this Agreement or the CCA/Company Mortgage Loan
Purchase and Sale Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or in such Mortgage Loan Purchase and Sale Agreement, was at the respective
times of such signing and delivery, and is as of the Closing Date, duly elected
or appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures; and (ii) no event (including, without limitation, any
act or omission on the part of CCA) has occurred since the date of the good
standing certificate referred to in paragraph (i) above which has affected the
good standing of CCA under the laws of the state of its organization. Each such
certificate shall be accompanied by true and complete copies (certified as such
by the secretary or an assistant secretary of CCA) of the organizational
documents of CCA, as in effect on the Closing Date, and of the resolutions of
CCA and any required member consent relating to the transactions contemplated in
this Agreement and the CCA/Company Mortgage Loan Purchase and Sale Agreement.
(k) In-house counsel for CCA shall have furnished to the
Underwriters its written opinion, dated the Closing Date, substantially in the
form attached hereto as Exhibit B-1, with such changes as are satisfactory to or
reasonably requested by the Representatives.
(l) Cadwalader, as counsel to CCA, shall have furnished to the
Underwriters its written opinion, dated the Closing Date, substantially in the
form attached hereto as Exhibit B-2, with such changes as are satisfactory to or
reasonably requested by the Representatives.
(m) Potter Anderson & Corroon LLP, as Delaware counsel to CCA,
shall have furnished to the Underwriters its written opinion, dated the Closing
Date, substantially in the form attached hereto as Exhibit B-3, with such
changes as are satisfactory to or reasonably requested by the Representatives.
(n) Shearman & Sterling ("Shearman"), as New York counsel to CCA,
shall have furnished to the Underwriters its written opinion, dated the Closing
Date, substantially in the form attached hereto as Exhibit B-4, with such
changes as are satisfactory to or reasonably requested by the Representatives.
(o) The Underwriters shall have received from NHA a certificate,
dated the Closing Date and executed by an executive officer of NHA, to the
effect that: (i) the representations and warranties of NHA in this Agreement and
in each Mortgage Loan Purchase and Sale Agreement are true and correct in all
material respects at and as of the Closing Date with the same effect as if made
on the Closing Date; and (ii) NHA has in all material respects complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied pursuant to each Mortgage Loan Purchase and Sale Agreement at or prior
to the Closing Date.
(p) The Underwriters shall have received with respect to NHA a
good standing certificate from the Secretary of State of the State of Delaware,
dated not earlier than 15 days prior to the Closing Date.
(q) The Underwriters shall have received from the Secretary or an
assistant secretary of NHA, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (i) each individual who, as an officer or
representative of NHA, signed this Agreement or any Mortgage Loan Purchase and
Sale Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated in this Agreement
or any Mortgage Loan Purchase and Sale Agreement, was at the respective times of
such signing and delivery, and is as of the Closing Date, duly elected or
appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents and certificates are
their genuine signatures; and (ii) no event (including, without limitation, any
act or omission on the part of NHA) has occurred since the date of the good
standing certificate referred to in paragraph (p) above which has affected the
good standing of NHA under the laws of the state of its incorporation. Each such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of NHA) of the certificate of
incorporation and by-laws of NHA, as in effect on the Closing Date, and of the
resolutions of NHA and any required shareholder consent relating to the
transactions contemplated in this Agreement or the Mortgage Loan Purchase and
Sale Agreements.
(r) In-house counsel for NHA shall have furnished to the
Underwriters its written opinion, dated the Closing Date, substantially in the
form attached hereto as Exhibit C-1, with such changes as are satisfactory to or
reasonably requested by the Representatives.
(s) Cadwalader, as New York counsel to NHA, shall have furnished
to the Underwriters its written opinion, dated the Closing Date, substantially
in the form attached hereto as Exhibit C-2, with such changes as are
satisfactory to or reasonably requested by the Representatives.
(t) Short Term Asset Receivable Trust ("START") shall have
furnished the Underwriters with a certificate signed by one or more of its
authorized signatories, dated the Closing Date, satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(u) Counsel for START satisfactory to the Representatives shall
have furnished the Underwriters with their written opinion, dated the Closing
Date, satisfactory in form and substance to the Representatives and counsel for
the Underwriters.
(v) The Servicer shall have furnished the Underwriters with a
certificate signed by one or more of its officers satisfactory to the
Representatives, dated as of the Closing Date, to the effect that the
representations and warranties of the Servicer in the Pooling and Servicing
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date.
(w) Andrews & Kurth L.L.P., as counsel to the Servicer, shall
have furnished the Underwriters with its written opinion, dated the Closing
Date, satisfactory in form and substance to the Representatives and counsel for
the Underwriters.
(x) The Special Servicer shall have furnished the Underwriters
with a certificate signed by one or more of its officers satisfactory to the
Representatives, dated as of the Closing Date, to the effect that the
representations and warranties of the Special Servicer in the Pooling and
Servicing Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date.
(y) Bilzin Sumberg Dunn Price & Axelrod, LLP, as counsel to the
Special Servicer, shall have furnished the Underwriters with its written opinion
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(z) The Trustee shall have furnished the Underwriters with a
certificate signed by one or more of its officers satisfactory to the
Representatives, dated as of the Closing Date, to the effect that the
representations and warranties of the Trustee in the Pooling and Servicing
Agreement are true and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date.
(aa) Kennedy Covington Lobdell & Hickman L.L.P., as counsel to
the Trustee and Fiscal Agent, shall have furnished the Underwriters with its
written opinion, dated the Closing Date, satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
(bb) The Underwriters shall have received a certificate of the
Company, dated the Closing Date, confirming all filings made a part of the
Registration Statement as of the Closing Date that relate to the Offered
Certificates.
(cc) The Underwriters shall have received from counsel for the
Company, NHA, CCA and START copies of any opinion(s) rendered thereby to the
Rating Agencies, together with a letter from such counsel, dated the Closing
Date, authorizing the Underwriters to rely on such opinion(s) as if addressed to
them.
(dd) The Underwriters shall have received from
PriceWaterhouseCoopers L.L.C. ("PWC"), 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 and Computational Materials as the Underwriters may reasonably
request and as are agreed to by PWC, 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.
(ee) The Offered Certificates listed on Schedule II hereto shall
have been rated as indicated on such Schedule II by the rating agency or
agencies indicated.
(ff) Since December 31, 1998, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, operations, financial condition,
properties or assets of the Company, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented or as disclosed to the
Representatives during the September 2 Meeting, the effect of which is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Offered Certificates on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(gg) Since December 31, 1998, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, operations, financial condition,
properties or assets of NHA, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented or as disclosed to the Representatives
during the September 2 Meeting, the effect of which is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
(hh) Since December 31, 1998, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the business, operations, financial condition,
properties or assets of CCA, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented or as disclosed to the Representatives
during the September 2 Meeting, the effect of which is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
(ii) Subsequent to the date hereof, there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates on the terms and in the manner contemplated in the Prospectus as
amended or supplemented.
(jj) 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 Representatives and counsel
for the Underwriters, and the Representatives and counsel for the Underwriters
shall have received such additional information, certificates and documents as
they may reasonably request.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages, or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any breach of the representations and warranties of the
Company set forth in Section 1(a) hereof (whether made as of the date hereof or
as of the Closing Date), which breach occurred as of the date hereof or as of
the Closing Date, and (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any Preliminary
Prospectus Supplement, the Registration Statement, any Computational Materials
and ABS Term Sheets provided to prospective investors with respect to the
Offered Certificates, any marketing materials (in any format) shown or otherwise
presented or made available as part of a "roadshow" to prospective investors
with respect to the Offered Certificates, the Prospectus as amended or
supplemented and any other prospectus relating to the Offered Certificates, or
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 not misleading, and
in the case of each of clause (i) and clause (ii) will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred; provided that the Company will not be
liable under the indemnity agreement in subsection (a)(i) to the extent that any
such loss, claim, damage or liability that arises out of or is based on a breach
of representation or warranty contemplated by clause (i) above constitutes
consequential damages; and provided, further, that the Company will not be
liable under the indemnity agreement in subsection (a)(ii) 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
contemplated by clause (ii) above and made in any Preliminary Prospectus, any
Preliminary Prospectus Supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Offered Certificates, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Prospectus as amended or supplemented; and provided,
further, that the Company will not be liable under the indemnity agreement in
subsection (a)(ii) with respect to any such loss, claim, damage or liability
that arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission contemplated by clause (ii) above and
made in any Computational Materials provided to investors with respect to the
Offered Certificates except to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
information provided to the Underwriters by the Company, NHA, CCA or any of
their affiliates or any third party in their employ; and provided, further, that
the Company will not be liable to any Underwriter under the indemnity agreement
in subsection (a)(ii) with respect to any Preliminary Prospectus to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Offered Certificates to a person as to whom
it shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the Prospectus
as then amended or supplemented in any case where such delivery is required by
the Act, if the Company has previously furnished copies thereof in sufficient
quantity to such Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was identified in writing (which
writing may consist of blacklined copies of the Prospectus showing the changes)
at such time to such Underwriter and corrected in the Prospectus or the
Prospectus as then amended or supplemented.
(b) Each Underwriter, severally and not jointly, will indemnify
and hold harmless the Company against any losses, claims, damages or liabilities
to which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any Preliminary
Prospectus Supplement, the Prospectus as amended or supplemented and any other
prospectus relating to the Offered Certificates, or 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 not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any Preliminary
Prospectus Supplement, the Prospectus as amended or supplemented and any other
prospectus relating to the Offered Certificates, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsections (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and its affiliates (other than NSI) on
the one hand and the Underwriters on the other from the offering of the Offered
Certificates to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and its
affiliates (other than NSI) on the one hand and the Underwriters on the other in
connection with the statements 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 benefits received by the
Company and its affiliates (other than NSI) on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by such
Underwriters. 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 and its affiliates (other than NSI) on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Certificates underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to the Offered Certificates and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act. The obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. Computational Materials and ABS Term Sheets. (a) Not later
than 2:00 p.m., New York City time, on the date hereof, the Underwriters shall
deliver to the Company and its counsel, as provided below, a complete copy of
all materials provided by the Underwriters to prospective investors in the
Offered Certificates which constitute either (i) "Computational Materials"
within the meaning of the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Commission (the "Staff") to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Staff of the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Kidder Letters") or (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Staff to the Public Securities Association (the "PSA Letter" and,
together with the Kidder Letters, the "No-Action Letters"), if the filing of
such materials with the Commission is a condition of the relief granted in such
letters and, in the case of any such materials that constitute "Collateral Term
Sheets" within the meaning of the PSA Letter, such Collateral Term Sheets have
not previously been delivered to the Company as contemplated by Section 9(b)(i)
below. For purposes of this Agreement, "Structural Term Sheets" shall have the
meaning set forth in the PSA Letter. Each delivery of Computational Materials
and/or ABS Term Sheets to the Company and its counsel pursuant to this paragraph
(a) shall be made in paper form and, in the case of ABS Term Sheets, electronic
format suitable for filing (or able to be readily converted to a format suitable
for filing) with the Commission.
(b) Each Underwriter represents and warrants to and agrees with
the Company, as of the date hereof and as of the Closing Date, as applicable,
that:
(i) if such Underwriter has provided any Collateral Term
Sheets to potential investors in the Offered Certificates prior to the
date hereof and if the filing of such materials with the Commission is
a condition of the relief granted in the PSA Letter, then in each such
case such Underwriter delivered to the Company and its counsel, in the
manner contemplated by Section 9(a), a copy of such materials no later
than 1:00 p.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 Certificates
furnished by such Underwriter (whether in written, electronic or other
format) to prospective investors in the Offered Certificates prior to
the date hereof (or, in the case of any actual investor in the Offered
Certificates, prior to the date on which the Prospectus is delivered
thereto), except for any Preliminary Prospectus with respect to the
Offered Certificates and any Computational Materials and ABS Term
Sheets with respect to the Offered Certificates which are not required
to be filed with the Commission in accordance with the No-Action
Letters, and all Computational Materials and ABS Term Sheets provided
by such Underwriter to potential investors in the Offered Certificates
comply with the requirements of the No-Action Letters;
(iii) all Collateral Term Sheets with respect to the Offered
Certificates 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
(iv) information included in the ABS Term Sheets with
respect to the Offered Certificates shall be of a type included in the
Prospectus.
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, it shall be necessary in
the opinion of the Company, the Underwriters or their respective 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 any Underwriter (the "Relevant Underwriter") 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 Act or the rules thereunder,
the Company or the Relevant Underwriter, as the case may be, shall promptly
notify the other (and each other Underwriter) of the necessity of such amendment
or supplement, and the Company shall promptly provide the Relevant Underwriter
with definitive information relating to the Mortgage Loans in electronic format
containing the data reasonably requested by the Relevant Underwriter to enable
it to comply with its obligations pursuant to this subsection (c). The Relevant
Underwriter, at the expense of the Company, shall promptly (i) 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, (ii) distribute such amendment or supplement to each investor
in the Offered Certificates that received such information being amended or
supplemented and who purchased the Offered Certificates, and (iii) furnish such
amendment or supplement to each other Underwriter. It is understood and agreed
that the Relevant Underwriter will use all reasonable efforts to prepare such
amendment or supplement and furnish it to the Company for filing with the
Commission within three (3) business days of the receipt of the corrected
Mortgage Loan information from the Company (provided that there shall be no
delay in the timely filing of the earlier materials that contain the untrue
statement or omission).
10. Substitution of Underwriters. (a) If any Underwriter shall
default in its obligation to purchase the Offered Certificates which it has
agreed to purchase hereunder, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such
Offered Certificates on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Offered Certificates, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Offered
Certificates on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Offered Certificates, or the Company notifies the
Representatives that it has so arranged for the purchase of such Offered
Certificates, the Representatives or the Company shall have the right to
postpone the Closing Date for such Offered Certificates for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party hereto.
(b) If, after giving effect to any arrangements for the purchase
of the Offered Certificates of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Offered Certificates which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Offered Certificates, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Offered
Certificates which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Offered Certificates which such
Underwriter agreed to purchase hereunder) of the Offered Certificates of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; provided that, if NSI is a defaulting Underwriter, the Company shall not
be permitted to require the other Underwriters to purchase any of the Offered
Certificates that NSI was required but failed to purchase hereunder; and
provided, further, that nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Offered Certificates of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Offered Certificates which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Offered
Certificates, as referred to in subsection (b) above, or if the Company shall
not (or, because NSI is a defaulting Underwriter, the Company is not entitled
to) exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Offered Certificates of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter, the Company,
NHA, or CCA, except for the expenses to be borne by the Company as provided in
Section 6 hereof, the indemnity and contribution agreements in Section 8 hereof
and the obligations of NHA and CCA under Sections 17 and 18 hereof, respectively
(insofar as they relate to the Company's obligations under Section 8 hereof);
but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. Representations and Indemnities to Survive. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, NHA, CCA and the several Underwriters, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Offered Certificates.
12. The Representatives. In all dealings hereunder, the
Representatives shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in any notice given to the Company by both
Representatives in accordance with Section 13.
13. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to the address of the
Representatives as set forth on the first page hereof; and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement: Attention:
Secretary; and if to CCA shall be delivered or sent by mail, telex or facsimile
transmission to Two World Financial Center - Building B, New York, New York
10281-1198, Attention: Manager Mortgage Finance Department; and if to NHA shall
be delivered or sent by mail, telex or facsimile transmission to Two World
Financial Center - Building B, New York, New York 10281-1198, Attention: Manager
- - - Mortgage Finance Department; provided, however, that any notice to an
Underwriter pursuant to Section 8(e) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriter's Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. Successors; Binding Effect. This Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company, NHA,
CCA and, to the extent provided in Sections 8, 11, 17 and 18 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Offered
Certificates from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Miscellaneous. This Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument. Time shall be of the
essence of this Agreement. As used herein, "business day" (without any other
clarification) shall mean any day when the Commission's office in Washington,
D.C. is open for business.
17. Obligations of NHA. NHA agrees, in consideration of and as an
inducement to the Underwriters' purchase of the Offered Certificates from the
Company, to indemnify and hold harmless each Underwriter, and each person who
controls each Underwriter within the meaning of Section 15 under the Act,
against any failure by the Company to perform any of its obligations under
Section 8 hereof (as they relate to the indemnity agreement in clause (ii) of
Section 8(a) and the corresponding contribution obligations in Section 8(d))
and, further, against any failure by CCA to perform any of its obligations under
Section 18 hereof, in each case promptly after receipt from any Underwriter of
written notice of any such failure.
18. Obligations of CCA. CCA agrees, in consideration of and as an
inducement to the Underwriters' purchase of the Offered Certificates from the
Company, to indemnify and hold harmless each Underwriter, and each person who
controls each Underwriter within the meaning of Section 15 under the Act,
against any failure by the Company to perform any of its obligations under
Section 8 hereof (as they relate to the indemnity agreement in clause (i) of
Section 8(a) and the corresponding contribution obligations in Section 8(d)),
promptly after receipt from any Underwriter of written notice of any such
failure.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us four counterparts hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, NHA, CCA and the several Underwriters.
Very truly yours,
ASSET SECURITIZATION CORPORATION
By:___________________________________
Name:
Title:
NOMURA HOLDING AMERICA INC.
By:___________________________________
Name:
Title:
THE CAPITAL COMPANY OF AMERICA LLC
By:___________________________________
Name:
Title:
<PAGE>
1999-C2 Underwriting Agreement
Accepted at New York, New York as of the date first written above on behalf of
the several Underwriters listed on Schedule I.
GOLDMAN, SACHS & CO.
By:_________________________________
Name:
Title:
NOMURA SECURITIES INTERNATIONAL, INC.
By:__________________________________
Name:
Title:
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount
of Relevant
Class of Offered
Certificates to be Purchased
(Expressed as a Percentage
of the Entire Principal
Underwriter Class Amount of Such Class)
- ----------- ----- ---------------------
<S> <C> <C>
Goldman, Sachs & Co. A-1, A-2 and A-3
Nomura Securities
International, Inc. A-1, A-2 and A-3
Donaldson, Lufkin & Jenrette
Securities Corporation A-1, A-2 and A-3
Goldman, Sachs & Co. [B and D]
Nomura Securities
International, Inc. [B and D]
Donaldson, Lufkin & Jenrette
Securities Corporation [B and D]
Goldman, Sachs & Co. [C, E and F]
Nomura Securities
International, Inc. [C, E and F]
Donaldson, Lufkin & Jenrette
Securities Corporation [C, E and F]
</TABLE>
<PAGE>
SCHEDULE II
Registration Statement No. 333-53859
Base Prospectus dated October , 1999
Prospectus Supplement dated October , 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 1999-C1,
Class A-1, Class A-2, Class
A-3, Class B, Class C, Class
D, Class E and Class F
Cut-off Date: October , 1999
Closing: 10:00 a.m. on October , 1999
at the offices of
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
<PAGE>
CGSH Draft 10/13/99
<TABLE>
<CAPTION>
Initial Aggregate
Certificate Principal Initial
Class Designation Balance of Class(1) Pass-Through Rate Purchase Price(2) Rating(3)
- ----------------- ---------------- ----------------- -------------- ------
<S> <C> <C> <C> <C>
Class A-1 $127,000,000 AAA/Aaa/AAA
Class A-2 $322,800,000 AAA/Aaa/AAA
Class A-3 $108,721,000 AAA/Aaa/AAA
Class B $39,057,000 AA/Aa2/AA
Class C $39,057,000 A/A2/A
Class D $11,718,000 A-/A3/A-
Class E $29,293,000 BBB/Baa2/BBB
Class F $15,623,000 BBB-/Baa3/BBB-
</TABLE>
- -------------------
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate principal amount of the
relevant class of Official Certificates to be purchased. The purchase
price for each class of the Offered Certificates will include accrued
interest at the initial Pass-Through Rate therefor on the aggregate
principal amount thereof to be purchased from the Cut-off Date to but
not including the Closing Date.
(3) By each of Fitch IBCA, Inc., Moody's Investors Service, Inc. and
Standard & Poor's Ratings Services, a Division of The McGraw-Hill
Companies, Inc., respectively.
<PAGE>
Exhibit A-1
-----------
ASC--IN-HOUSE OPINION
October 28, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
I am Secretary of and Counsel to Asset Securitization
Corporation, a Delaware corporation ("ASC"). I have been asked to deliver this
opinion in connection with the issuance of Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2 (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement dated as
of October 11, 1999 (the "Pooling and Servicing Agreement"), by and among ASC,
as depositor, LaSalle Bank National Association, as trustee, BNY Asset Solutions
LLC, as servicer, Lennar Partners, Inc., as special servicer, and ABN AMRO Bank
N.V., as fiscal agent.
Capitalized terms used and not otherwise defined herein have the
meanings given to them in the Underwriting Agreement dated October 15, 1999, by
and among ASC, The Capital Company of America LLC, a Delaware limited liability
company ("CCA"), Nomura Holding America Inc., a Delaware corporation ("NHA"),
and Goldman, Sachs & Co. ("Goldman, Sachs") and Nomura Securities International,
Inc. ("NSI"),as representatives of the underwriters described therein (Goldman,
Sachs and NSI, collectively with Donaldson, Lufkin & Jenrette Securities
Corporation, the "Underwriters"), as amended by Amendment No. 1 to the
Underwriting Agreement, dated as of October 15, 1999, by and among ASC, CCA, NHA
and Goldman Sachs and NSI (the "Underwriting Agreement"), and, if not defined
therein, in the Pooling and Servicing Agreement. I have examined such documents
as I believe are necessary or appropriate for the purposes of this opinion,
including the certificate of incorporation, by-laws and resolutions adopted by
the Board of Directors of ASC, the Pooling and Servicing Agreement, the
Underwriting Agreement, the Mortgage Loan Purchase and Sale Agreement, dated as
of October 11, 1999 (the "CCA/Company Mortgage Loan Purchase Agreement"), by and
between ASC, as purchaser, and CCA, as seller, and acknowledged by NHA, the
Mortgage Loan Purchase and Sale Agreement, dated as of October 11, 1999 (the
"NHA/Company Mortgage Loan Purchase Agreement"), by and between ASC, as
purchaser, and NHA, as seller, the form of assignment and delivery of the
Mortgage Loans and related collateral therefor and all exhibits thereto (the
Pooling and Servicing Agreement, the Underwriting Agreement, the CCA/Mortgage
Loan Purchase Agreement and the NHA/Mortgage Loan Purchase Agreement,
collectively, the "Agreements"). In reaching such opinions, I have assumed
without investigation, except as expressly set forth below, that there are no
facts inconsistent with the assumptions made in paragraphs A through D below.
A. All signatures of parties, other than ASC, on all documents
are genuine. Each person executing any instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
ASC, is duly authorized to do so.
B. All documents submitted as original are authentic; and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of
a business entity, are legally competent.
D. All other parties to documents, other than ASC, have the
requisite power and authority to consummate the transactions contemplated by the
Agreements and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations
of law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. ASC is a corporation, duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and is duly qualified
to do business in the State of New York as a foreign corporation.
2. ASC has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Agreements.
3. The execution, delivery and performance of the Agreements by
ASC have been duly authorized by all necessary corporate action of ASC.
4. Neither the issuance and sale of the Certificates nor the
execution, delivery or performance of the terms of the Agreements will result in
the breach of any term or provision of the certificate of incorporation or
by-laws of ASC or conflict with, result in a breach or violation of or the
acceleration of indebtedness under, or constitute a default under, the terms of
any indenture, agreement or instrument of which I have knowledge to which ASC is
a party or by which it is bound, or any order or decree of any court, regulatory
body, administrative agency or governmental body having jurisdiction over ASC
and known to me as being applicable to ASC.
5. To my knowledge, there is no action, suit or proceeding
against, or investigation of, ASC pending or threatened against ASC before any
court, administrative agency or other tribunal which, either individually or in
the aggregate, (a) asserts the invalidity of any of the Agreements or the
Certificates, (b) seeks to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by the Agreements or (c)
which would materially and adversely affect (i) the performance by ASC of its
obligations under, or the validity or enforceability of, any of the Agreements
or the Certificates, or (ii) any rights with regard to the Mortgaged Properties
or the Mortgage Loans.
In addition to the qualifications set forth above, the opinions
herein are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the
opinions expressed herein concern only the laws of the State of New York, as
currently in effect, the federal laws of the United States of America, as
currently in effect, and the corporate laws of the State of Delaware, as
currently in effect.
2. I assume no obligation to supplement this opinion if, after
the date hereof, any applicable laws change or I become aware of any facts that
might change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this
letter. No other opinions should be inferred beyond the matters expressly
stated.
The opinions expressed in this letter may be relied upon solely
by the addressees hereof solely with respect to the transactions described in
the Agreements, and may not be relied upon by any other person or entity,
without my specific prior written consent.
Sincerely,
[Marshall S. Brozost, Esq.]
<PAGE>
SCHEDULE A
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Nomura Securities International, Inc.
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue, 9th Floor
New York, NY 10172
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, IL 60674-4102
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 1625
Chicago, IL 60674-4102
Standard & Poor's Ratings Services
a division of the Mc-Graw Hill Companies, Inc.
55 Water Street
New York, NY 10041
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Fitch IBCA
One State Street Plaza
New York, NY 10004
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
<PAGE>
Exhibit A-2
-----------
ASC - CWT OPINION
October 28, 1999
Goldman, Sachs & Co. Nomura Securities International, Inc.
85 Broad Street 2 World Financial Center
New York, New York 10004 Building B, 21st Floor
New York, New York 10281
As Representatives of the Underwriters.
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 7(g) of the
Underwriting Agreement, dated October 15, 1999, by and among Asset
Securitization Corporation, a Delaware corporation ("ASC"), The Capital Company
of America LLC, a Delaware limited liability company ("CCA"), Nomura Holding
America Inc., a Delaware corporation ("NHA"), Goldman, Sachs & Co. ("Goldman,
Sachs") and Nomura Securities International, Inc. ("NSI"), as representatives of
the underwriters described therein (the "Underwriters"), as amended by Amendment
No. 1 to the Underwriting Agreement, dated as of October 15, 1999, by and among
ASC, CCA, NHA and Goldman, Sachs and NSI (the "Underwriting Agreement"). We have
acted as special counsel to (1) ASC and CCA in connection with the purchase by
ASC from CCA, pursuant to a Mortgage Loan Purchase and Sale Agreement dated as
of October 11, 1999 (the "CCA/Mortgage Loan Purchase and Sale Agreement"), by
and between ASC and CCA and acknowledged by NHA, of the mortgage loans described
therein; (2) ASC and NHA in connection with the purchase by ASC from NHA,
pursuant to a Mortgage Loan Purchase and Sale Agreement dated as of October 11,
1999 (the "NHA/Mortgage Loan Purchase and Sale Agreement" and collectively with
the CCA/Mortgage Loan Purchase and Sale Agreement, the "Mortgage Loan Purchase
and Sale Agreements"), by and between ASC and NHA, of the mortgage loans
described therein; (3) ASC in connection with (a) the issuance of the Commercial
Mortgage Asset Trust, Commercial Mortgage Pass-Through Certificates, Series
1999-C2, consisting of twenty-one classes: the "Class A-1 Certificates," the
"Class A-2 Certificates," the "Class A-3 Certificates," the "Class CS-1
Certificates", the "Class X Certificates", the "Class B Certificates," the
"Class C Certificates," the "Class D Certificates," the "Class E Certificates,"
the "Class F Certificates," the "Class G Certificates," the "Class H
Certificates," the "Class J Certificates," the "Class K Certificates," the
"Class L Certificates," the "Class M Certificates," the "Class N Certificates,"
the "Class Q-1 Certificates," the "Class Q -2 Certificates," the "Class R
Certificates" and the "Class LR Certificates" (collectively, the
"Certificates"); and (b) the sale by ASC and the purchase by the Underwriters
pursuant to the Underwriting Agreement of the Class A-1, the Class A-2, the
Class A-3, the Class CS-1, the Class X, and the Class F Certificates and a
portion of Class B, the Class C, the Class D and the Class E Certificates
(collectively, along with the remaining Class B, Class C, Class D and Class E
Certificates, the "Offered Certificates"); (4) NHA in connection with the
acknowledgment by NHA of the CCA/Mortgage Loan Purchase and Sale Agreement; (5)
CCA in connection with the execution by CCA of the Underwriting Agreement; and
(6) NHA in connection with the execution by NHA of the Underwriting Agreement.
The Certificates are being issued pursuant to a Pooling and Servicing Agreement,
dated as of October 11, 1999 (the "Pooling and Servicing Agreement"), by and
among ASC, as depositor, LaSalle Bank National Association, as trustee, BNY
Assets Solutions LLC, as servicer, Lennar Partners, Inc., as special servicer,
and ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used and not
otherwise defined herein have the meanings given to them in the Pooling and
Servicing Agreement.
The Certificates will evidence beneficial ownership interests in
a trust fund (the "Trust Fund"), the assets of which will consist primarily of
the mortgage loans (the "Mortgage Loans") identified in Exhibit B to the Pooling
and Servicing Agreement, together with certain related assets.
In rendering the opinions set forth below, we have examined and
relied upon originals, copies or specimens, certified or otherwise identified to
our satisfaction, of the Underwriting Agreement, the Pooling and Servicing
Agreement, the Mortgage Loan Purchase and Sale Agreements and all exhibits
thereto (collectively, the "Agreements"), the Registration Statement on Form S-3
No. 333-53859 which was filed with the Securities and Exchange Commission (the
"Commission") on September 21, 1998 and which became effective on September 25,
1998 (the "Registration Statement"), the Preliminary Prospectus Supplement dated
October 4, 1999 relating to the Offered Certificates, the Prospectus dated
October 15, 1999 (the "Base Prospectus") and the Prospectus Supplement dated
October 15, 1999 relating to the Offered Certificates (the "Prospectus
Supplement", and together with the Base Prospectus, the "Prospectus"); such
Prospectus to be filed with the Commission pursuant to Rule 424(b)(5) of the
Securities Act of 1933, as amended (the "Act") on or before October 27, 1999,
specimen forms of the Offered Certificates, and such certificates, corporate and
public records and other documents, agreements, instruments and opinions,
including, among other things, the documents delivered at the closing of the
purchase and sale of the Offered Certificates (the "Closing") and the opinion of
Marshall S. Brozost, Esq., Secretary of and Counsel to ASC, dated of even date
herewith, as we have deemed necessary as a basis for such opinions expressed
below. In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents, agreements and instruments submitted to us as
originals, the conformity to original documents, agreements and instruments of
all documents, agreements and instruments submitted to us as copies or
specimens, the authenticity of the originals of such documents, agreements and
instruments submitted to us as copies or specimens, the conformity of the text
of each document filed with the Commission through the Commission's Electronic
Data Gathering, Analysis and Retrieval System to the printed document reviewed
by us, and the accuracy of the matters set forth in the documents, agreements
and instruments we reviewed. As to any facts material to such opinions that were
not known to us, we have relied upon statements, certificates and
representations of officers and other representatives of ASC, NHA, CCA, the
Servicer, the Special Servicer, the Trustee, the Fiscal Agent and the
Underwriters included in the Agreements and other documents, certificates and
opinions delivered at the Closing and of public officials.
We have assumed that each party to the Agreements had the power
and authority to enter into and perform the obligations undertaken by it under
the Agreements to which it is a party, that the Agreements were duly authorized,
executed and delivered by each such party (other than ASC, as to execution and
delivery) and that, with respect to each such party (other than ASC), each such
Agreement constitutes the legal, valid, and binding agreement of such party. As
used herein, "to our knowledge" means the actual awareness, without independent
investigation, of facts or other information by any lawyer in our firm actively
involved in the transactions contemplated by the Agreements.
We express no opinion concerning the laws of any jurisdiction
other than the substantive laws of the State of New York and, where expressly
referred to below, the substantive federal laws of the United States of America
(in the latter case without regard to conflicts of laws principles).
Based upon, and subject to the foregoing, we are of the opinion
that:
1. The Registration Statement is effective under the Act, and, to
our knowledge, no stop order with respect thereto has been issued, or proceeding
for that purpose has been instituted or threatened by the Commission.
2. The Registration Statement as of the date it became effective,
and the Prospectus as of the date of the Prospectus Supplement (in each case
excluding any information incorporated by reference therein and any numerical,
financial, statistical and quantitative data included therein, as to which we
express no view), appeared on their face to be appropriately responsive in all
material respects to the requirements of the Act and the rules and regulations
thereunder applicable to such documents as of the relevant date.
3. To our knowledge, there are no contracts or other documents of
a character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus, as
amended or supplemented, which are not filed or described as required.
4. The statements in the Base Prospectus under the headings
"Federal Income Tax Consequences," "ERISA Considerations" and "Legal Investment"
and in the Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences," "Certain ERISA Considerations" and "Legal Investment," insofar as
such statements purport to summarize matters of federal law or legal conclusions
with respect thereto, have been reviewed by us and are correct in all material
respects. The statements made under the captions "Description of the
Certificates" and "Description of the Agreements" in the Base Prospectus and
"The Pooling and Servicing Agreement" and "Description of the Offered
Certificates" in the Prospectus Supplement, insofar as such statements
constitute a summary of the terms of the Offered Certificates and the Pooling
and Servicing Agreement, are correct in all material respects.
5. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund
created by the Pooling and Servicing Agreement is not required to be registered
under the Investment Company Act of 1940, as amended.
6. Assuming that the elections required by Section 860D(b) of the
Internal Revenue Code of 1986, as amended (the "Code"), are properly made, and
assuming that the Trust Fund is administered in compliance with the Pooling and
Servicing Agreement as in effect on the Closing Date, and with any subsequent
changes in the law, including any amendments to the Code or applicable Treasury
regulations thereunder, (a) the Upper-Tier REMIC, the Lower-Tier REMIC , the
Geneva Crossing REMIC and the Henry W. Oliver REMIC will each qualify for
treatment for federal income tax purposes as a real estate mortgage investment
conduit, as defined in Section 860D of the Code; (b) the Class A-1, the Class
A-2, the Class A-3, the Class CS-1, the Class X, the Class B, the Class C, the
Class D, the Class E, the Class F, the Class G, the Class H, the Class J, the
Class K, the Class L, the Class M, the Class N, the Class Q-1 and the Class Q-2
Certificates will represent "regular interests" in the Upper-Tier REMIC and the
Class R and the Class LR Certificates will represent the sole classes of
"residual interests" in the Upper-Tier REMIC and the Lower-Tier REMIC,
respectively, within the meaning of the Code. Furthermore, (i) those portions of
the Trust Fund consisting of the right to receive (u) the Repurchase Return of
Premium Amount, (v) the Repurchase Price Return of Premium Distribution Account,
(w) the Excess Interest, (x) the Excess Interest Distribution Account, (y) the
Geneva Crossing REMIC Residual Interest and (z) the Henry W. Oliver REMIC
Residual Interest will be characterized for federal income tax purposes as a
grantor trust under Subpart E of Part 1 of Subchapter J of the Code; (ii) the
Class X Certificates will represent pro rata undivided beneficial interests in
that portion of the Trust Fund consisting of the Repurchase Return of Premium
Amount and the Repurchase Price Return of Premium Distribution Account; (iii)
the Class A-2, the Class A-3, the Class B, the Class C, the Class D, the Class
E, the Class F, the Class G, the Class H, the Class J, the Class K, the Class L,
the Class M, the Class N, the Class Q-1 and the Class Q-2 Certificates will
represent pro rata undivided beneficial interests in that portion of the Trust
Fund consisting of the Excess Interest and the Excess Interest Distribution
Account; and (iv) the Class LR Certificates will represent pro rata undivided
beneficial interests in the Geneva Crossing REMIC Residual Interest and the
Henry W. Oliver REMIC Residual Interest.
7. Each of the Agreements has been duly executed and delivered by
ASC and constitutes the legal, valid and binding agreement of ASC, enforceable
against ASC in accordance with its terms, subject to applicable bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization and similar
laws affecting creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), and except that rights to indemnification and
contribution may be limited by applicable law or public policy.
8. No consent, approval, authorization of, registration or filing
with, or notice to, any State of New York or federal governmental or regulatory
authority, agency, department, commission, board, bureau, body or
instrumentality is required for the execution, delivery or performance of, or
compliance by ASC with, the Agreements except such as may be required under
State securities or Blue Sky laws and such approvals as have been obtained or
effected and such recordations of the assignments of the Mortgage Loans or the
reassignments of assignments of leases, rents and profits or filings of UCC
Financing Statements that have not yet been completed.
9. Neither the issuance and sale of the Offered Certificates nor
the execution, delivery and performance of the terms of the Agreements by ASC
will conflict with, or result in a violation of, any New York State or federal
law that is, to our knowledge, applicable to ASC.
10. The Offered Certificates have been validly issued and are
outstanding and entitled to the benefits provided by the Pooling and Servicing
Agreement.
11. Assuming that the Class A-1, Class A-2, Class A-3, Class
CS-1, Class X and Class B Certificates are rated at the time of issuance in one
of the two highest rating categories by a nationally recognized statistical
rating organization, each such Certificate at the time of the issuance thereof
will be a "mortgage related security" as such term is defined in Section
3(a)(41) of the Exchange Act.
We have rendered the opinions expressed herein based on facts and
circumstances existing, and applicable laws, rules, regulations, court
decisions, and governmental and regulatory authority determinations in effect on
the date hereof. We assume no obligation to update or supplement this letter to
reflect any facts, circumstances, laws, rules, or regulations, or any changes
thereto, or any court or other authority or commission decisions or governmental
or regulatory authority determinations which may hereafter occur or come to our
attention.
We are furnishing this opinion to each addressee hereof solely
for its benefit in connection with the transactions referred to herein. This
opinion is not to be relied upon, used, circulated, quoted or otherwise referred
to by any other person or for any other purpose without our prior written
consent.
Very truly yours,
[CADWALADER, WICKERSHAM & TAFT]
<PAGE>
Exhibit A-3
-----------
CWT 10B-5 LETTER--PUBLICS
October 28, 1999
Goldman, Sachs & Co. Nomura Securities International, Inc.
85 Broad Street 2 World Financial Center
New York, NY 10004 Building B, 21st Floor
New York, NY 10281
As Representatives of the Underwriters.
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
This letter is being delivered to you (i) pursuant to Section
7(g) of the Underwriting Agreement, by and among Asset Securitization
Corporation ("ASC"), The Capital Company of America LLC ("CCA"), Nomura Holding
America Inc. and Goldman, Sachs & Co. ("Goldman, Sachs") and Nomura Securities
International, Inc. ("NSI"), as representatives of the underwriters described
therein (collectively, the "Underwriters"), as amended by Amendment No. 1 to the
Underwriting Agreement, dated as of October 15, 1999, by and among ASC, CCA, NHA
and Goldman, Sachs and NSI (the "Underwriting Agreement"), relating to the sale
by ASC and the purchase by the Underwriters of Commercial Mortgage Asset Trust,
Commercial Mortgage Pass-Through Certificates, Series 1999-C2, Class A-1, Class
A-2, Class A-3, Class CS-1, Class X and Class F Certificates and a portion of
the Class B, Class C, Class D and Class E Certificates (collectively, the
"Purchased Certificates"). We have acted as special counsel to ASC in connection
with the aforementioned transaction.
This letter is with reference to the registration under the
Securities Act of 1933, as amended (the "Act"), of a registration statement on
Form S-3 No. 333-53859 which was filed with the Securities and Exchange
Commission (the "Commission") on September 21, 1998 and became effective on
September 25, 1998 (the "Registration Statement"). The Purchased Certificates
have been offered by a Prospectus, dated October 15, 1999 (the "Base
Prospectus"), as supplemented by the final Prospectus Supplement, dated October
15, 1999 (the "Prospectus Supplement") relating to the Purchased Certificates,
which updates or supplements certain information contained in the Base
Prospectus (the Base Prospectus and the Prospectus Supplement, together, the
"Prospectus"). Capitalized terms used and not otherwise defined herein have the
meanings given to them in the Pooling and Servicing Agreement, dated as of
October 11, 1999, among ASC, as depositor, LaSalle Bank National Association, as
trustee, BNY Asset Solutions LLC, as servicer, Lennar Partners Inc., as special
servicer, and ABN AMRO Bank N.V., as fiscal agent.
We assume, for purposes of this letter, the conformity of the
text of each document filed with the Commission through the Commission's
Electronic Data Gathering, Analysis and Retrieval System to the printed document
reviewed by us. This letter is limited to the actual awareness, without
independent investigation, of facts or other information by any lawyer in our
firm actively involved in the transactions contemplated by the Underwriting
Agreement. For purposes hereof, the terms "Registration Statement," "Base
Prospectus," "Prospectus Supplement" and "Prospectus" do not include the Form
8-Ks, or the exhibits thereto, filed with the Commission relating to the
Purchased Certificates, and we express no view with respect thereto.
We have not ourselves checked the accuracy, completeness or
fairness of, or otherwise verified, the information contained in the
Registration Statement or the Prospectus and we do not pass upon or assume any
responsibility therefor (other than as set forth in paragraph 4 of our opinion
to you of even date herewith on behalf of ASC (the "Opinion Letter")). In
particular, without limiting the generality of the foregoing and with your
consent, we have not reviewed the Mortgage Files relating to the Mortgage Loans,
including without limitation, any documents prepared or delivered in connection
with the origination, modification or assignment of the Mortgage Loans (except
for our limited review of the Mortgage Files relating to the Mortgage Loans
identified as "Reviewed Mortgage Loans" on Exhibit A hereto, and except that our
firm represented one of the Mortgage Loan Sellers in the origination of those
certain Mortgage loans identified as "Cadwalader, Wickersham & Taft Originated
Mortgage Loans" on Exhibit A hereto). However, in the course of our
participation in the preparation of the Registration Statement and the
Prospectus, we have attended certain conferences and participated in
conversations with representatives of ASC, ASC's independent public accountants,
CCA and your representatives. On the basis of the information which we gained in
the course of the representation referred to above and our examination of the
documents referred to in the Opinion Letter, considered in light of our
understanding of applicable law and the experience we have gained through our
practice, nothing has come to our attention in the course of our review of the
Registration Statement and the Prospectus which causes us to believe that: (i)
as of the effective date of the Registration Statement, as of the date of any
post-effective amendment thereof or as of the date hereof, the Registration
Statement, as amended, 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 (ii) as of the date of the
Prospectus Supplement or as of the date hereof, the Prospectus contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that we express no view as to the adequacy or accuracy of (i) the
financial or statistical information in the Registration Statement or the
Prospectus or (ii) any information contained in any computer disk accompanying
the Prospectus.
We are furnishing this letter based on facts and circumstances
existing, and applicable laws, rules, regulations, court decisions, and
governmental and regulatory authority determinations in effect, on the date
hereof. We assume no obligation to update or supplement this letter to reflect
any facts, circumstances, laws, rules, or regulations, or any changes thereto,
or any court or other authority or body decisions or governmental or regulatory
authority determinations which may hereafter occur or come to our attention.
We are furnishing this letter solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or for any other purpose without our prior written consent.
Very truly yours,
[Cadwalader, Wickersham & Taft]
<PAGE>
EXHIBIT A
Reviewed Mortgage Loans
1. The Westin Tabor Center Loan
2. The 208 South LaSalle Loan
3. The ACCOR-M-Six-III Credit Tenant Loan
4. The Marina Pacifica Loan
5. The Luckman Plaza Loan
6. The Henry W. Oliver Building Loan
7. The Congressional North Loan
8. The 80 John Street Loan
9. The Bayside Exposition Center Loan
Cadwalader, Wickersham & Taft Originated Mortgage Loans
1. The 532 Broad Hollow Road Loan
2. The Campbell Forum Loan
3. The Chestnut Gardens Loan
4. The Spring Glen Medical Center Loan
5. The Staples Plaza Loan
6. The Willow Creek Manor Apartments Loan
7. The 80 John Street Loan
<PAGE>
Exhibit B-1
-----------
CCA--IN-HOUSE OPINION
October 28, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
I am Assistant Secretary of and Counsel to The Capital Company of
America LLC, a Delaware limited liability company ("CCA"). I have been asked to
deliver this opinion in connection with the sale by CCA and the purchase by
Asset Securitization Corporation ("ASC"), pursuant to the Mortgage Loan Purchase
and Sale Agreement dated as of October 11, 1999 (the "Mortgage Loan Purchase and
Sale Agreement"), by and between CCA and Asset Securitization Corporation, of
the Mortgage Loans described therein and the assignment and delivery of such
Mortgage Loans and related collateral therefor by CCA to the Trustee and in
connection with the execution by CCA of the Underwriting Agreement dated October
15, 1999, by and among Asset Securitization Corporation ("ASC"), CCA, Nomura
Holding America Inc. and Goldman, Sachs & Co. ("Goldman, Sachs") and Nomura
Securities International, Inc., as representatives of the underwriters described
therein, as amended by Amendment No. 1 to the Underwriting Agreement, dated as
of October 15, 1999, by and among ASC, CCA, NHA and Goldman, Sachs and NSI (the
"Underwriting Agreement" and, together with the Mortgage Loan Purchase and Sale
Agreement, the "Agreements"). Capitalized terms used and not otherwise defined
herein have the meanings given to them in the Pooling and Servicing Agreement
dated as of October 11, 1999, by and among ASC, as depositor, LaSalle Bank
National Association, as trustee, BNY Asset Solutions LLC, as servicer, Lennar
Partners, Inc., as special servicer, and ABN AMRO Bank N.V., as fiscal agent.
I have examined such documents as I believe are necessary or
appropriate for the purposes of this opinion, including the certificate of
formation, incumbency resolution and operating agreement adopted by the members
of CCA and the Agreements and all exhibits thereto. In reaching such opinions, I
have assumed without investigation, except as expressly set forth below, that
there are no facts inconsistent with the assumptions made in paragraphs A
through D below.
A. All signatures of parties, other than CCA, on all documents
are genuine. Each person executing any such instrument, document or agreement,
whether individually or on behalf of a firm or other business entity, other than
CCA, is duly authorized to do so.
B. All documents submitted as original are authentic, and all
photostatic copies, and all copies certified by a governmental custodian or a
party to the transaction, conform to authentic original documents.
C. All natural persons, including all persons acting on behalf of
a business entity, are legally competent.
D. All other parties to documents, other than CCA, have the
requisite power and authority to consummate the transactions contemplated by the
Agreements and to execute and deliver the applicable documents.
Based on my review of the foregoing and such other considerations
of law and fact as I believe to be relevant, and subject to the limitations,
assumptions and qualifications set forth herein, I am of the opinion that:
1. Each of the Agreements has been duly executed and delivered by
CCA.
2. CCA is qualified to do business and is in good standing in the
State of New York.
3. The execution, delivery and performance of the terms of the
Agreements will not result in the breach or violation of or a default under any
order or decree of any court, regulatory body, administrative agency or
governmental body having jurisdiction over CCA and known to me as being
applicable to CCA.
4. There is no action, suit or proceeding against, or
investigation of, CCA pending or, to my knowledge, threatened against CCA before
any court, administrative agency or other tribunal which, either individually or
in the aggregate, (a) asserts the invalidity of the Agreements, (b) seeks to
prevent the consummation of any of the transactions contemplated by the
Agreements or (c) which would materially and adversely affect (i) the
performance by CCA of its obligations under, or the validity or enforceability
of, the Agreements, or (ii) any rights with regard to the Mortgaged Properties
or the Mortgage Loans.
5. The execution, delivery and performance by CCA of, and the
consummation of the transactions contemplated by, the Agreements do not and will
not result in a breach of, constitute a default under, require any consent
under, or result in the acceleration or required prepayment of any indebtedness
pursuant to the terms of any agreement or instrument of which I have actual
knowledge (such actual knowledge solely based on discussions with members of
CCA's senior management and without further investigation) to which CCA is a
party or by which it is bound or to which it is subject, or result in the
creation or imposition of any lien upon any property of CCA pursuant to the
terms of any such agreement or instrument, any of which occurrences, either in
any one instance or in the aggregate, would allow into question the validity of
the Agreements or be reasonably likely to impair materially the ability of CCA
to perform under the terms of the Agreements.
In addition to the qualifications set forth above, the opinions
herein are also subject to the following qualifications:
1. I am a member of the Bar of the State of New York, and the
opinions expressed herein concern only the laws of the State of New York, as
currently in effect, and the federal laws of the United States of America, as
currently in effect and the limited liability company law of the State of
Delaware, as currently in effect.
2. I assume no obligation to supplement this opinion if, after
the date hereof, any applicable laws change or I become aware of any facts that
might change the opinions set forth herein.
3. The opinions are limited to the matters set forth in this
letter. No other opinions should be inferred beyond the matters expressly
stated.
The opinions expressed in this letter may be relied upon solely
by the addressees hereof solely with respect to the transactions described in
the Agreements, and may not be relied upon by any other person or entity,
without my specific prior written consent.
Sincerely,
[Marshall S. Brozost, Esq.]
<PAGE>
SCHEDULE A
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Nomura Securities International, Inc.
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue, 9th Floor
New York, NY 10172
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
Standard & Poor's Ratings Services
a division of the McGraw-Hill Companies, Inc.
55 Water Street
New York, NY 10041
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Fitch IBCA
One State Street Plaza
New York, NY 10004
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
<PAGE>
Exhibit B-2
-----------
CCA--CWT OPINION
October 28, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 4 of the
Mortgage Loan Purchase and Sale Agreement dated as of October 11, 1999 (the
"Mortgage Loan Purchase Agreement"), by and between The Capital Company of
America LLC, a Delaware limited liability company ("CCA"), and Asset
Securitization Corporation, a Delaware corporation (the "Purchaser"), and
acknowledged by Nomura Holding America Inc., a Delaware corporation ("NHA"), and
pursuant to Section 7(l) of the Underwriting Agreement, dated October 15, 1999,
by and among Asset Securitization Corporation, CCA, NHA and Goldman, Sachs & Co.
("Goldman, Sachs") and Nomura Securities International, Inc. ("NSI"), as
representatives of the underwriters described therein, as amended by Amendment
No. 1 to the Underwriting Agreement, dated as of October 15, 1999 by and among
ASC, CCA, NHA and Goldman, Sachs and NSI (the "Underwriting Agreement" and,
together with the Mortgage Loan Purchase Agreement, the "Agreements"). We have
acted as special counsel to CCA in connection with the execution by CCA of the
Underwriting Agreement and the sale by CCA and the purchase by the Purchaser of
the mortgage loans (the "Mortgage Loans") which are described in the Mortgage
Loan Purchase Agreement. Capitalized terms used and not otherwise defined herein
have the meanings given to them in the Mortgage Loan Purchase Agreement and, if
not defined therein, in the Underwriting Agreement.
In rendering the opinion set forth below, we have examined and
relied upon originals, copies or specimens, certified or otherwise identified to
our satisfaction, of the Agreements and such certificates, corporate records and
other documents and instruments, as we have deemed necessary as a basis for such
opinion hereinafter expressed, including those delivered at the closing for the
sale of the Mortgage Loans and the sale of the Offered Certificates. In addition
we have relied, with your permission, on the opinion of counsel of Marshall S.
Brozost, Esq., Assistant Secretary of and Counsel to CCA, and on the opinion of
Potter, Anderson & Corroon LLP, special counsel to CCA, each dated of even date
herewith. In connection with such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents, agreements and instruments
submitted to us as originals, and the conformity to original documents,
agreements and instruments of all documents and instruments submitted to us as
copies or specimens, the authenticity of the originals of such documents,
agreements and instruments submitted to us as copies or specimens, and the
accuracy of the matters set forth in the documents, agreements and instruments
we reviewed. As to any facts material to such opinion that were not known to us,
we have relied, with your consent, upon statements, certificates and
representations of officers and other representatives of CCA. As used herein,
"to our knowledge" means the actual awareness, without independent
investigation, of facts or other information by any lawyer in our firm actively
involved in the transactions contemplated by the Agreements.
We have assumed that each party to the Agreements had the power
and authority to enter into and perform the obligations undertaken by it under
the Agreements, that the Agreements were duly authorized, executed and delivered
by each of the parties thereto, and that each of the Agreements constitutes the
legal, valid, and binding agreement of the parties thereto (other than CCA).
We express no opinion concerning the laws of any jurisdiction
other than the substantive laws of the State of New York.
Based upon, and subject to the foregoing, we are of the opinion
that:
1. Each Agreement constitutes the legal, valid and binding
agreement of CCA, enforceable against CCA in accordance with its terms, subject
to applicable bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
2. No consent, approval, authorization of, registration or filing
with, or notice to, any State of New York or federal governmental or regulatory
authority, agency, department, commission, board, bureau, body or
instrumentality is required for the execution, delivery or performance of, or
compliance by CCA with, the Agreements except such approvals as have been
obtained or effected and such recordations of the assignments of the Mortgage
Loans or the reassignments of assignments of leases, rents and profits or
filings of UCC Financing Statements that have not yet been completed.
3. Neither the sale of the Mortgage Loans nor the execution,
delivery and performance of the terms of the Agreements by CCA will conflict
with, or result in the violation of, any New York State or federal law that is,
to our knowledge, applicable to CCA.
<PAGE>
We have rendered the opinions expressed herein based on facts and
circumstances existing, and applicable laws, rules, regulations, court
decisions, and governmental and regulatory authority determinations in effect,
on the date hereof. We assume no obligation to update or supplement this letter
to reflect any facts, circumstances, laws, rules, or regulations, or any changes
thereto, or any court or other authority or commission decisions or governmental
or regulatory authority determinations which may hereafter occur or come to our
attention.
We are furnishing this opinion to each addressee hereof solely
for its benefit in connection with the transaction referred to herein. This
opinion is not to be relied upon, used, circulated, quoted or otherwise referred
to by any other person or for any other purpose without our prior written
consent.
Very truly yours,
[CADWALADER, WICKERSHAM & TAFT]
<PAGE>
SCHEDULE A
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Nomura Securities International, Inc.
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
as Representatives of the Underwriters
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
Standard & Poor's Ratings Services
a division of the McGraw-Hill Companies, Inc.
55 Water Street
41st Floor
New York, NY 10041
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Fitch IBCA
One State Street Plaza
New York, NY 10004
<PAGE>
Exhibit B-3
-----------
CCA -- DELAWARE COUNSEL OPINION
October 28, 1999
TO EACH OF THE PERSONS LISTED ON
SCHEDULE A ATTACHED HERETO
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for The Capital Company
of America LLC, a Delaware limited liability company (the "Company"), in
connection with, among other things, the Amended and Restated Limited Liability
Company Agreement of the Company dated April 16, 1999 (the "Operating
Agreement") by Nomura Asset Capital Corporation, a Delaware corporation
("NACC"). This opinion is furnished to you pursuant to Section 4 of the Mortgage
Loan Purchase and Sale Agreement dated as of October 11, 1999 (the "Purchase
Agreement") by and between the Company and Asset Securitization Corporation
("ASC"), and acknowledged by Nomura Holding America Inc., a Delaware corporation
("NHA") and pursuant to Section 7(m) of the Underwriting Agreement, dated
October 15, 1999, by and among ASC, the Company, NHA and Goldman, Sachs & Co.
("Goldman Sachs") and Nomura Securities International, Inc. ("NSI") as
representatives of the underwriters described therein, as amended by Amendment
No. 1 to the Underwriting Agreement, dated October 15, 1999, by and among ASC,
the Company, NHA and Goldman, Sachs and NSI (the "Underwriting Agreement" and,
together with the Purchase Agreement, the "Transaction Agreements." ) We have
been engaged as special Delaware counsel for the Company in connection with the
giving of this opinion. Terms used herein and not otherwise defined herein shall
have the meaning set forth in the Operating Agreement.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
1. The Certificate of Formation of the Company dated as of
January 29, 1998 (the "Certificate of Formation"), as filed in the Office of the
Secretary of State of the State of Delaware (the "Secretary of State") on
January 29, 1998;
2. The Limited Liability Company Agreement of the Company dated
as of February 19, 1998 (the "Original Agreement"), by NHA;
3. The Interim Amended and Restated Limited Liability Company
Agreement of the Company dated June 26, 1998;
4. The Operating Agreement;
5. The Contribution Agreement dated as of June 18, 1998, by and
between NHA and NACC, pursuant to which NHA transferred its membership interest
in the Company to NACC (the "Contribution Agreement");
6. A Long Form Certificate of Good Standing for the Company dated
October 28, 1999 obtained from the Secretary of State;
7. The cancelled Membership Certificate originally issued to NHA
on February 19, 1998 (the "Original Certificate");
8. The Membership Certificate issued to NACC on June 18, 1998
(the "Outstanding Certificate");
9. The Register of Membership Interests (the "Membership
Register") reflecting (i) the issuance of the Original Certificate, (ii) the
cancellation of the Original Certificate in connection with the Contribution
Agreement and the transfer from NHA to NACC occurring thereunder; and (iii) the
issuance to NACC of the Outstanding Certificate;
10. Resolutions of the Board of Managers of the Company dated as
of October 11, 1999 (the "Resolutions"), with respect to the authorization of
the Transaction Agreements;
11. A Certificate of a duly authorized officer of the Company
dated October 28, 1999, certifying as to certain factual matters, including,
without limitation, the absence of an amendment to the Operating Agreement or
Certificate of Formation, the non-occurrence of any event of dissolution under
the Operating Agreement, the status of transfers and withdrawals from the
Company, and the non-existence of any assets or employees in the State of
Delaware;
12. The Purchase Agreement;
13. The Underwriting Agreement; and
14. A search dated October 28, 1999 (the "Search") of the docket
records of the Court of Common Pleas, Superior Court, the Court of Chancery and
the Supreme Court of the State of Delaware, in each of New Castle County, Kent
County and Sussex County, as well as the United States District Court for the
State of Delaware (the "Courts"), reflecting the through dates of the Search
pertaining to each of the Courts, respectively, as to the non-existence of a
decree of judicial dissolution under Section 18-802 of the Act.
The documents referred to in (1), (2), (3) and (4)are
collectively referred to herein as the "Company's Organizational Documents." The
documents referred to in (2), (3), (4), (5), (12) and (13) are collectively
referred to as the "Agreements" and individually as an "Agreement."
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in (1) through (14) above. We have assumed that
there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein.
In addition, we have conducted no independent factual
investigation of our own but rather have relied solely on the foregoing
documents, the statements and information set forth therein and the additional
matters related or assumed therein, all of which we have assumed to be true,
complete and accurate. Whenever a statement herein is qualified by the phrase
"known by us" or a correlative phrase, it is intended to indicate the current
and actual knowledge of the attorneys in the firm who have rendered legal
services in connection with the transactions described herein.
Based upon the foregoing, and upon an examination of such
questions of law of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
A. The Company (i) has been duly formed as a limited liability
company and is validly existing and in good standing under the laws of the State
of Delaware, and (ii) has the requisite limited liability company power and
authority to enter into the Transaction Agreements and to perform its respective
obligations thereunder.
B. The execution, delivery and performance by the Company of the
Transaction Agreements (i) have been duly authorized by all necessary limited
liability company action on behalf of the Company, and (ii) do not result in a
violation of the Company's Organizational Documents or any statutory law or
regulation of the State of Delaware known by us to be applicable to the Company.
C. No authorization, consent or approval of, and no notice to or
filing with, any governmental authority or regulatory body of the State of
Delaware is required for the due execution, delivery and performance by the
Company of the Transaction Agreements.
All of the foregoing opinions contained herein are subject to the
following assumptions, qualifications, limitations, and exceptions:
(a) the foregoing opinions are limited to the laws of the State of
Delaware presently in effect, excluding the securities provisions
thereof. We have not considered and express no opinion on the
laws of any other jurisdiction, including, without limitation,
federal laws and rules and regulations relating thereto.
(b) We have assumed that all signatures on documents examined by us
are genuine, that all documents submitted to us as originals are
authentic and that all documents submitted to us as copies
conform with the originals.
(c) We have assumed the due execution and delivery by each party
thereto of each document examined by us. In addition, we have
assumed the due authorization by each party thereto (exclusive of
the Company, as to the Transaction Agreements) of each document
examined by us, and that each of such parties (exclusive of the
Company, as to the Transaction Agreements) has the full power,
authority, and legal right to execute, deliver and perform under
each such document. We also have assumed that each of the parties
(exclusive of the Company) to each of the Agreements is a legal
entity duly formed, validly existing and in good standing under
the laws of their respective jurisdictions of organization and
that the Agreements to which each of such entities to each of the
Agreements (other than, in the case of the Company, as expressly
set forth in Paragraph B) is a party do not result in the breach
of the terms of, and do not contravene its constituent documents
or any law, rule or regulation applicable to it. We have also
assumed that each of the Agreements to which each of such
entities is a party does not (other than, in the case of the
Company as expressly set forth in Paragraphs B and C) (x) result
in the breach of the terms of, and does not contravene, any
contractual restriction binding upon such entities, or (y)
require under any law, statute, rule, or regulation any filing
with, or any approval or consent of, any governmental authority.
We have further assumed the legal capacity of any natural persons
who are signatories to any of the Agreements or other documents
examined by us.
(d) We have assumed that all of the Agreements other than the
Operating Agreement constitute legal, valid, binding and
enforceable obligations of each of the parties thereto in
accordance with their respective terms and under the stated laws
of governance thereof.
(e) We have assumed that the Risk Management Agreement is no longer
in effect.
(f) We have assumed that the transactions contemplated by the
Agreements to which the Company is a party do not result in a
violation of any Japanese law or regulatory requirement by Nomura
Japan or Nomura.
(g) We express no opinion on any filings that may be required
pursuant to the Uniform Commercial Code as in effect in the State
of Delaware.
(h) We have assumed that the Company's Organizational Documents and
the Agreements constitute the entire agreement among the parties
thereto with respect to the subject matter thereof, including
with respect to the admission of members to, and the creation,
operation, dissolution and winding up of, the Company.
This opinion is rendered solely for your benefit in connection
with the maters set forth herein and, without our prior written consent, may not
be furnished or quoted to, or relied upon by, any other person or entity for any
purpose. Cadwalader, Wickersham & Taft may rely on this opinion in connection
with any legal opinion being rendered by the same on the date hereof with
respect to the matters set forth herein.
Very truly yours,
[POTTER ANDERSON & CORROON LLP]
<PAGE>
SCHEDULE A
Asset Securitization Corporation
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Nomura Securities International, Inc.
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue, 9th Floor
New York, NY 10172
The Capital Company of America LLC
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
Standard & Poor's Ratings Services
a division of the McGraw-Hill Companies, Inc.
55 Water Street
41st Floor
New York, NY 10041
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Fitch IBCA
One State Street Plaza
New York, NY 10004
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
<PAGE>
Exhibit C-1
-----------
NHA--IN-HOUSE OPINION
October 28, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
I am Chief Legal Officer of Nomura Holding America Inc., a
Delaware corporation ("NHA"), and have acted as counsel to NHA with respect to
certain matters in connection with (1) the Mortgage Loan Purchase and Sale
Agreement, dated as of October 11, 1999 (the "NHA/Company Mortgage Loan Purchase
and Sale Agreement"), by and between Asset Securitization Corporation and NHA,
(2) the Underwriting Agreement, dated October 15, 1999, by and among Asset
Securitization Corporation, a Delaware corporation ("ASC" or the "Purchaser"),
The Capital Company of America LLC, a Delaware limited liability company
("CCA"), NHA and Goldman, Sachs & Co. ("Goldman Sachs") and Nomura Securities
International, Inc. ("NSI"), as representatives of the underwriters described
therein, as amended by Amendment No. 1 to the Underwriting Agreement, dated as
of October 15, 1999, by and among ASC, CCA, NHA and Goldman Sachs and NSI (the
"Underwriting Agreement"), and (3) the Mortgage Loan Purchase and Sale
Agreement, dated as of October 11, 1999 (the "CCA/Company Mortgage Loan Purchase
and Sale Agreement" and, together with the NHA/Company Mortgage Loan Purchase
and Sale Agreement and the Underwriting Agreement, the "Agreements"), by and
between ASC, CCA and acknowledged by NHA. Capitalized terms not defined herein
have the meanings assigned to them in the Underwriting Agreement and, if not
defined therein, in the NHA/Company Mortgage Loan Purchase and Sale Agreement.
In connection with rendering this opinion letter, I have examined
the Agreements and such other documents as I have deemed necessary. As to
matters of fact material to this opinion, I have examined and relied upon
representations, warranties and covenants of the parties contained therein and,
where I have deemed appropriate, representations or certifications of officers
of parties thereto or public officials. In rendering this opinion letter, except
for the matters that are specifically addressed in the opinions expressed below,
I have assumed (i) the authenticity of all documents submitted to me as
originals, the authenticity of all signatures (other than NHA) and the
conformity to the originals of all documents submitted to me as copies, (ii) the
necessary entity formation and continuing existence in the jurisdiction of
formation, and the necessary licensing and qualification in all jurisdictions,
of all parties to all documents (other than NHA), (iii) the necessary
authorization, execution, delivery and enforceability of all documents, and the
necessary entity power with respect thereto, and (iv) that there is not and will
not be any other agreement that modifies or supplements the agreements expressed
in the documents to which this opinion letter relates and that renders any of
the opinions expressed below inconsistent with such documents as so modified or
supplemented.
In rendering this opinion letter, I do not express any opinion
with respect to matters involving the laws of any jurisdiction other than the
State of New York, the General Corporate Law of the State of Delaware and the
federal laws of the United States of America. I express no opinion on the
creation or perfection of any security or ownership interests pursuant to the
Agreements. I am a member of the Bar of the State of New York.
Based upon and subject to the foregoing, it is my opinion that:
1. NHA is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and is qualified to do
business and is in good standing in the State of New York.
2. NHA has all requisite corporate power, authority and legal
right to execute and deliver the Agreements and observe the terms and conditions
of the Agreements.
3. The execution, delivery and performance by NHA of the
Agreements have been duly authorized by all necessary corporate action on the
part of NHA. The Agreements have been duly executed and delivered by NHA.
4. No consent, approval, authorization or order of, and no filing
or registration with, any court or governmental agency or regulatory body is
required on the part of NHA for the execution, delivery or performance by NHA of
the Agreements.
5. The execution, delivery and performance by NHA of, and the
consummation of the transactions contemplated by, the Agreements do not and will
not (a) violate any provision of NHA's charter or by-laws, (b) violate any
applicable law, rule or regulation, or (c) violate any order, writ, injunction
or decree of any court or governmental authority or agency or any arbitral award
applicable to NHA of which we have knowledge and which, either in any one
instance or in the aggregate, would call into question the validity of the
Agreements or be reasonably likely to impair materially the ability of NHA to
perform under the terms of the Agreement.
6. The execution, delivery and performance by NHA of, and the
consummation of the transactions contemplated by, the Agreements do not and will
not result in a breach of, constitute a default under, require any consent
under, or result in the acceleration or required prepayment of any indebtedness
pursuant to the terms of, any agreement or instrument of which I have actual
knowledge to which NHA is a party or by which it is bound or to which it is
subject, or result in the creation or imposition of any lien upon any property
of NHA pursuant to the terms of any such agreement or instrument, any of which
occurrences, either in any one instance or in the aggregate, would allow into
question the validity of the Agreements or be reasonably likely to impair
materially the ability of NHA to perform under the terms of the Agreements.
7. There is no action, suit, proceeding or investigation pending
or, to our knowledge, threatened against NHA which, in our judgment, either in
any one instance or in the aggregate, would be reasonably likely to result in
any material adverse change in properties, business or financial condition, or
prospects of NHA or in any material impairment of the right or ability of NHA to
carry on its business substantially as now conducted or in any material
liability on the part of NHA or which would draw into question the validity or
enforceability of the Agreements or the validity of any action taken or to be
taken in connection with the transactions contemplated thereby, or which would
be reasonably likely to impair materially the ability of NHA to perform under
the terms of the Agreements.
This opinion letter is rendered for the sole benefit of the
addressees hereof and no other person or entity is entitled to rely hereon.
Copies of this opinion letter may not be made available, and this opinion letter
may not be quoted or referred to in any other document made available, to any
other person or entity, except to any rating agency or accountant or attorney
for any person or entity entitled hereunder to rely hereon or to whom or which
this opinion letter be disclosed as provided herein, or as otherwise required by
law.
Very truly yours,
[William T. Maitland]
<PAGE>
SCHEDULE A
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Nomura Securities International, Inc.
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue, 9th Floor
New York, NY 10172
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
Standard & Poor's Ratings Services
a division of the McGraw-Hill Companies, Inc.
55 Water Street
41St Floor
New York, NY 10041
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Fitch IBCA
One State Street Plaza
New York, NY 10004
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
<PAGE>
Exhibit C-2
-----------
NHA--CWT OPINION
October 28, 1999
TO THE PERSONS ON
THE ATTACHED SCHEDULE A
Re: Commercial Mortgage Asset Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2
----------------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion pursuant to Section 4 of the
Mortgage Loan Purchase and Sale Agreement, dated as of October 11, 1999 (the
"NHA/Mortgage Loan Purchase and Sale Agreement"), by and between Asset
Securitization Corporation, a Delaware corporation ("ASC") and Nomura Holding
America Inc., a Delaware corporation ("NHA"), and pursuant to Section 7(r) of
the Underwriting Agreement, dated October 15, 1999, by and among ASC, The
Capital Company of America LLC ("CCA"), NHA and Goldman, Sachs & Co. ("Goldman,
Sachs") and Nomura Securities International, Inc. ("NSI"), as representatives of
the underwriters described therein, as amended by Amendment No. 1 to the
Underwriting Agreement, dated as of October 15, 1999, by and among ASC, CCA, NHA
and Goldman, Sachs and NSI (the "Underwriting Agreement"). We have acted as
special counsel to NHA in connection with: (a) the execution by NHA of the
Underwriting Agreement; (b) the sale by NHA and the purchase by ASC, pursuant to
the NHA/Mortgage Loan Purchase and Sale Agreement, of the mortgage loans
described therein; and (c) the acknowledgment by NHA of the Mortgage Loan
Purchase and Sale Agreement, dated as of October 11, 1999 (the "CCA/Mortgage
Loan Purchase and Sale Agreement" and, together with the NHA/Mortgage Loan
Purchase and Sale Agreement, the "Mortgage Loan Purchase and Sale Agreements"),
by and between ASC and CCA, and acknowledged by NHA. Capitalized terms used and
not otherwise defined herein have the meanings given to them in the NHA/Mortgage
Loan Purchase and Sale Agreement and, if not defined therein, in the
Underwriting Agreement.
In rendering the opinions set forth below, we have examined and
relied upon originals, copies or specimens, certified or otherwise identified to
our satisfaction, of the Underwriting Agreement, the Mortgage Loan Purchase and
Sale Agreements and all the respective exhibits thereto (collectively, the
"Agreements") and such certificates, corporate records and other documents and
instruments, as we have deemed necessary as a basis for such opinion hereinafter
expressed, including those delivered at the closing for the sale of the Mortgage
Loans and the sale of the Offered Certificates. In addition we have relied, with
your permission, on the opinion of counsel of William Maitland, Esq., Counsel to
NHA, dated of even date herewith. In connection with such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents,
agreements and instruments submitted to us as originals, the conformity to
original documents, agreements and instruments of all documents, agreements and
instruments submitted to us as copies or specimens, the authenticity of the
originals of such documents, agreements and instruments submitted to us as
copies or specimens, and the accuracy of the matters set forth in the documents,
agreements and instruments we reviewed. As to any facts material to such
opinions that were not known to us, we have relied upon statements, certificates
and representations of officers and other representatives of ASC, NHA, CCA, the
Servicer, the Special Servicer, the Trustee, the Fiscal Agent and the
Underwriters included in the Agreements and other documents, certificates and
opinions delivered at the Closing and of public officials. We have examined such
questions of law as we have deemed necessary for purposes of these opinions.
We have assumed that each party to the Agreements had the power
and authority to enter into and perform the obligations undertaken by it under
the Agreements to which it is a party, that the Agreements were duly authorized,
executed and delivered by such party, and that, with respect to each such party,
each such Agreement constitutes the legal, valid, and binding agreement of such
party (other than NHA).
We express no opinion concerning the laws of any jurisdiction
other than the substantive laws of the State of New York.
Based upon and subject to the foregoing, we are of the opinion
that each of the Agreements constitutes the legal, valid and binding agreement
of NHA, enforceable against NHA in accordance with its terms, subject to
applicable bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law), and except
that rights to indemnification and contribution may be limited by applicable law
or public policy.
We have rendered the opinions expressed herein based on facts and
circumstances existing, and applicable laws, rules, regulations, court
decisions, and governmental and regulatory authority determinations in effect,
on the date hereof. We assume no obligation to update or supplement this letter
to reflect any facts, circumstances, laws, rules or regulations, or any changes
thereto, or any court or other authority or commission decisions or governmental
or regulatory authority determinations which may hereafter occur or come to our
attention.
We are furnishing this opinion to each addressee hereof solely
for its benefit in connection with the transactions referred to herein. This
opinion is not to be relied upon, used, circulated, quoted or otherwise referred
to by any other person or for any other purpose without our prior written
consent.
Very truly yours,
[CADWALADER, WICKERSHAM & TAFT]
<PAGE>
SCHEDULE A
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Nomura Securities International, Inc.
2 World Financial Center
Building B, 21st Floor
New York, NY 10281
As Representatives of the Underwriters
LaSalle Bank National Association
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
ABN AMRO Bank N.V.
135 South LaSalle Street, Suite 1625
Chicago, IL 60603
Standard & Poor's Ratings Services
a division of the McGraw-Hill Companies, Inc.
55 Water Street
41St Floor
New York, NY 10041
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Fitch IBCA
One State Street Plaza
New York, NY 10004
<PAGE>
EXECUTION VERSION
COMMERCIAL MORTGAGE ASSET TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-C2
AMENDMENT NO. 1 TO UNDERWRITING AGREEMENT
As of October 15, 1999
The undersigned parties to the Underwriting Agreement dated
October 15, 1999 (the "Agreement"), with respect to the Commercial Mortgage
Pass-Through Certificates, Series 1999 C-2, hereby agree to amend the
Underwriting Agreement as of the date thereof as follows:
(1) Section 5 of the Agreement is hereby amended by adding the
following two subsections at the end thereof:
"(f) Prior to the use of the Prospectus Supplement or any
marketing materials or disclosure documents to which the Prospectus
Supplement is attached (collectively, the "Marketing Materials") in
connection with any offer or sale (a "Subsequent Offer") by the Company,
an affiliate of the Company, or any person acting on its behalf, of any
Offered Certificates that were not purchased by the Underwriters
pursuant to this Agreement, the Company shall deliver to each
Underwriter that is not involved in such Subsequent Offer as an
underwriter, placement agent or broker (a "Nonparticipating
Underwriter") the proposed Marketing Materials for approval, and shall
not use any Marketing Materials which such Nonparticipating Underwriter
reasonably disapproves. The Marketing Materials shall contain, on a
supplement to the Prospectus Supplement permanently affixed to the cover
page thereof, a statement to the effect that the Nonparticipating
Underwriters named in the Prospectus Supplement are not acting as
underwriters, agents or brokers in connection with the Subsequent Offer
and are not responsible for the contents of the Marketing Materials.
"(g) The Company shall promptly deliver to each
Nonparticipating Underwriter two copies of any Marketing Materials
delivered to prospective investors in connection with any Subsequent
Offer."
(2) Clause (i) of Section 8(a) of the Agreement is hereby amended
by inserting the following immediately before the word "and" at the end of such
clause:
"or any breach of the agreement of the Company set forth
in Sections 5(f) or 5(g)".
(3) Section 8 of the Agreement is hereby amended by adding the
following subsection at the end thereof:
"(f) The Company will indemnify and hold harmless each
Underwriter or contribute to any amounts paid or payable by each
Underwriter, and any person who controls any Underwriter within the
meaning of the Act, with respect to all Marketing Materials provided to
prospective investors in connection with any Subsequent Offer, to the
same extent as set forth above in this Section 8 with respect to any
Preliminary Prospectus, any Preliminary Prospectus Supplement, the
Registration Statement or the Prospectus relating to the Offered
Certificates."
(4) Section 17 of the Agreement is hereby amended by inserting
the following immediately after the reference to Section 8(d):
"and the obligations of the Company under Section 8(e)".
(5) The Agreement is hereby amended by replacing Schedules I and
II thereto in their entirety with the Schedules I and II attached hereto.
Except as expressly amended hereby, the Underwriting Agreement
shall remain in full force and effect in accordance with its terms.
<PAGE>
ASSET SECURITIZATION CORPORATION
By: _____________________________________
Name:
Title:
NOMURA HOLDING AMERICA INC.
By: _____________________________________
Name:
Title:
THE CAPITAL COMPANY OF AMERICA LLC
By: ____________________________________
Name:
Title:
GOLDMAN, SACHS & CO.
By: _____________________________________
Name:
Title:
NOMURA SECURITIES INTERNATIONAL, INC.
By: _____________________________________
Name:
Title:
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal or Notional Amount of Classes of Offered Certificates to be Purchased
-------------------------------------------------------------------------------
Underwriters Class A-1 Class A-2 Class A-3 Class CS-1 Class X
------------ --------- --------- --------- ---------- -------
<S> <C> <C> <C> <C>
Goldman, Sachs & Co. $56,542,500 $143,924,850 $48,946,500 $21,600,000 -
Nomura Securities International, Inc. $56,542,500 $143,924,850 $48,946,500 $21,600,000 $775,180,294
Donaldson, Lufkin & Jenrette $12,565,000 $31,983,300 $10,877,000 $ 4,800,000 -
Securities Corporation
Total $125,650,000 $319,833,000 $108,770,000 $48,000,000 $775,180,294
====== ============ ============ ============ =========== ============
</TABLE>
<TABLE>
<CAPTION>
TABLE (CONTINUED)
Underwriters Class B Class C Class D Class E Class F
------------ ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Goldman, Sachs & Co. $6,930,000 $1,350,000 $3,150,000 $10,933,200 $6,976,350
Nomura Securities International, Inc. $6,930,000 $1,350,000 $3,150,000 $10,933,200 $6,976,350
Donaldson, Lufkin & Jenrette $1,540,000 $ 300,000 $ 700,000 $ 2,429,600 $1,550,300
Securities Corporation
Total $15,400,000 $3,000,000 $7,000,000 $24,296,000 $15,503,000
====== =========== ========== ========== =========== ===========
</TABLE>
<PAGE>
SCHEDULE II
Registration Statement No. 333-53859
Base Prospectus dated October 15, 1999
Prospectus Supplement dated October 15 , 1999
Title of Offered Certificates: Commercial Mortgage Pass-Through
Certificates, Series 1999-C2,
Class A-1, Class A-2, Class
A-3, Class B, Class C, Class
CS-1, Class D, Class E, Class
F and Class X
Cut-off Date: October 11, 1999
Closing: 10:00 a.m. on October 28, 1999
at the offices of
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
<PAGE>
<TABLE>
<CAPTION>
Initial Aggregate
Certificate Principal
or Notional Balance of Initial
Class Designation(1) Class(2) Pass-Through Rate Purchase Price(3) Rating(4)
- ----------------- ----- ----------------- -------------- ------
<S> <C> <C> <C> <C>
Class A-1 $125,650,000 7.2850% 100.00188% AAA/Aaa/AAA
Class A-2 $319,833,000 7.5460% 100.00172% AAA/Aaa/AAA
Class A-3 $108,770,000 7.7370% 100.00464% AAA/Aaa/AAA
Class CS-1 $48,000,000 .791147% 1.503906% AAA/Aaa/AAA
Class X $775,180,294 .635979% 3.38635% AAA/Aaa/AAA
Class B $38,759,000 7.8000% 96.9707792% AA/Aa2/AA
Class C $38,759,000 7.8000% 94.061610% A/A2/A
Class D $11,627,000 7.8000% 94.296875% A-/A3/A-
Class E $29,069,000 7.6400% 84.2297292% BBB/Baa2/BBB
Class F $15,503,000 7.6400% 80.82056% BBB-/Baa3/BBB-
</TABLE>
- -------------------
(1) The Class A-1, Class A-2 and Class A-3 Certificates were purchased by
the Underwriters on October 15, 1999 and the Class CS-1, Class X and
Class F Certificates and the principal or notional amount of the Class
B, Class C, Class D and Class E Certificates specified on Schedule I
hereto were purchased by the Underwriters on October 20, 1999.
(2) Plus or minus a permitted variance of 5%.
(3) Expressed as a percentage of the aggregate principal or notional amount
of the relevant class of Official Certificates to be purchased. There
will be added to the purchase price of the Offered Certificates interest
accrued in respect to the amount of each Class of the Offered
Certificates purchased by the Underwriters at the initial Pass-Through
Rate applicable to such Class from the Cut-off Date to but not including
the Closing Date.
(4) By each of Fitch IBCA, Inc., Moody's Investors Service, Inc. and
Standard & Poor's Ratings Services, a Division of The McGraw-Hill
Companies, Inc., respectively.
