DLJ COMMERCIAL MORTGAGE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2000-CF1
UNDERWRITING AGREEMENT
June 20, 2000
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Salomon Smith Barney Inc.
388 Greenwich Street, 11th Floor
New York, New York 10013
Ladies and Gentlemen:
DLJ Commercial Mortgage Corp., a Delaware corporation (the
"Company"), proposes to sell to you (together, the "Underwriters"), subject to
the terms and conditions stated herein, those classes (each, a "Class") of its
Commercial Mortgage Pass-Through Certificates, Series 2000-CF1, specified in
Schedule II hereto (the "Offered Certificates"). The Offered Certificates,
together with the other commercial mortgage pass-through certificates of the
same series (the "Private Certificates"; and, collectively with the Offered
Certificates, the "Certificates"), will be issued pursuant to a pooling and
servicing agreement to be dated as of June 1, 2000 (the "Pooling and Servicing
Agreement"), among the Company, as depositor, Midland Loan Services, Inc., as
master servicer (the "Master Servicer"), GMAC Commercial Mortgage Corporation,
as special servicer (the "Special Servicer"), and Norwest Bank Minnesota,
National Association, as trustee (the "Trustee"). The Certificates will evidence
the entire beneficial ownership of 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. Multiple real estate mortgage
investment conduit ("REMIC") elections are to be made with respect to the Trust
Fund with the resulting REMICs being referred to as "REMIC I", "REMIC II" and
"REMIC III", respectively. The Company acquired the Mortgage Loans from Column
Financial, Inc. ("Column" or the "Mortgage Loan Seller") pursuant to a mortgage
loan purchase agreement dated as of the date hereof (the "Mortgage Loan Purchase
Agreement"), between the Company and Column. The Offered Certificates and the
Mortgage Loans are described more fully in the Basic Prospectus and the
Prospectus Supplement (each of which terms is defined below) which the Company
is furnishing to you. Capitalized terms used but not otherwise defined herein
will have the respective meanings assigned thereto in the Prospectus Supplement.
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It is our understanding that Donaldson, Lufkin & Jenrette
Securities Corporation will act as lead manager with respect to the offering of
the Offered certificates contemplated hereby (Donaldson, Lufkin & Jenrette
Securities Corporation, in such capacity, the "Lead Manager").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-82275) on Form
S-3 for the registration under the Securities Act of 1933, as amended (the
"Act"), of the offer and sale of commercial mortgage pass-through certificates,
such as the Offered Certificates, which registration statement has become
effective. 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 you 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 "Basic Prospectus"; such supplement to the Basic Prospectus, in the form in
which it will be filed with the Commission pursuant to Rule 424 under the Act,
is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and
the Prospectus Supplement together are hereinafter called the "Prospectus". Any
preliminary form of the Prospectus Supplement which has heretofore been filed
pursuant to Rule 402(a) or Rule 424 under the Act is hereinafter called a
"Preliminary Prospectus Supplement"; and any such Preliminary Prospectus
Supplement, together with the form of prospectus that accompanied it, are
hereinafter called a "Preliminary Prospectus". References herein to the
Prospectus or Prospectus Supplement shall exclude information incorporated
therein by reference pursuant to a filing made in accordance with Section 9
hereof, but shall include any ABS Term Sheet (as defined in Section 9) actually
included therein other than by incorporation by reference (and regardless of
whether such ABS Term Sheet is also incorporated therein by reference). 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.
(b) 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 (as defined in Section 3),
any other amendment to the Registration Statement becomes effective, when, prior
to the Closing Date, any supplement to the Prospectus Supplement is filed with
the Commission, and at the Closing Date, (i) the Registration Statement, as
amended as of any such time, and the Prospectus, as amended or supplemented as
of any such time, complied or will comply in all material respects with the
applicable requirements of the Act and the rules thereunder, (ii) the
Registration Statement, as amended as of any such time, did not and will not
contain any untrue statement of a material fact and did not and will not omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) 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 that the
Company makes no representations or warranties as to (A) the information
contained in or omitted from the Registration Statement or the Prospectus, or
any amendment thereof or supplement thereto, in reliance
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upon and in conformity with written information furnished to the Company by any
Underwriter directly for use therein, (B) the information contained in or
omitted from the Prospectus, or any amendment thereof or supplement thereto, in
reliance upon and conformity with (1) the Master Tape (it being acknowledged
that the Master Tape was used to prepare the Prospectus Supplement, including,
without limitation, Exhibit A-1 and Exhibit A-2 to the Prospectus Supplement and
the accompanying diskette), (2) the representations and warranties of the
Mortgage Loan Seller set forth in or made pursuant to the Mortgage Loan Purchase
Agreement, or (3) any other information concerning the characteristics of the
Mortgage Loans, the related obligors on the Mortgage Loans (the "Borrowers") or
the related mortgaged real properties securing the Mortgage Loans (the
"Mortgaged Properties") furnished to the Company or the Underwriters by the
Mortgage Loan Seller, (C) the information regarding the Mortgage Loans, the
Borrowers and the Mortgaged Properties contained in or omitted from the
Prospectus Supplement, or any amendment thereof or supplement thereto, under the
headings "Summary of the Prospectus Supplement--The Underlying Mortgage Loans
and the Mortgaged Real Properties", "Risk Factors--Risks Related to the
Underlying Mortgage Loans" and "Description of the Mortgage Pool" or on Exhibit
A-1 or Exhibit A-2 thereto or on the accompanying diskette, or (D) the
information contained in or omitted from any Computational Materials (as defined
in Section 9 hereof) or ABS Term Sheets, or any amendment thereof or supplement
thereto, incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any amendment thereof or supplement
thereto) by reason of a filing made in accordance with Section 9. The "Master
Tape" consists of the compilation of underlying information and data regarding
the Mortgage Loans covered by the Independent Accountants Report on Applying
Agreed Upon Procedures dated June 20, 2000, as supplemented to the Closing Date,
and rendered by Arthur Andersen LLP.
(c) The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, with full
power and authority (corporate and other) to own its properties and conduct its
business, as described in the Prospectus, and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement, and is
conducting its business so as to comply in all material respects with all
applicable statutes, ordinances, rules and regulations of the jurisdictions in
which it is conducting business.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration Statement or the
Prospectus or for any additional information, regarding the Offered Certificates
(ii) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) At or prior to the Closing Date, the Company will have
entered into the Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Company, and the Pooling and Servicing
Agreement, when delivered by the Company, will have been duly authorized,
executed and delivered by the Company; and this Agreement constitutes, and the
Pooling and Servicing Agreement, when delivered by the Company, will constitute,
valid and binding agreements of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by (i) bankruptcy, insolvency, liquidation, moratorium, receivership,
reorganization or similar laws affecting the rights of creditors generally, (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy
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considerations limit the enforceability of any provisions of this Agreement or
the Pooling and Servicing Agreement which purport or are construed to provide
indemnification from securities law liabilities.
(f) The Offered Certificates and the Pooling and Servicing
Agreement conform in all material respects to the descriptions thereof contained
in the Prospectus; the issuance and sale of the Offered Certificates have been
duly and validly authorized by the Company, and such Certificates, when duly and
validly executed and authenticated by the Trustee in accordance with the Pooling
and Servicing Agreement and paid for by and delivered to the Underwriters in
accordance with this Agreement, will be entitled to the benefits of the Pooling
and Servicing Agreement.
(g) As of the Closing Date, the representations and warranties
of the Company set forth in Section 2.04 of the Pooling and Servicing Agreement
will be true and correct.
(h) Neither the sale of the Offered Certificates to the
Underwriters pursuant hereto, nor the consummation of any other of the
transactions contemplated herein, nor the fulfillment of any of the terms of the
Pooling and Servicing Agreement or this Agreement, will result in the breach of
any term or provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a material breach, violation or acceleration
of or constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which it is bound, or any statute, order or regulation applicable to the Company
or any of its subsidiaries of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects the ability of the
Company to perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(i) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the Pooling and Servicing Agreement
or the Offered Certificates, (ii) 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, (iii) which might materially
and adversely affect the performance by the Company of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling and Servicing
Agreement or the Offered Certificates or (iv) seeking to affect adversely the
federal income tax attributes of the Offered Certificates described in the
Prospectus.
(j) There has not been any material adverse change in the
business, operations, financial condition, properties or assets of the Company
since the date of its latest audited financial statements which would have a
material adverse effect on the ability of the Company to perform its obligations
under the Pooling and Servicing Agreement.
(k) 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.
(l) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Offered Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement, except such as have been, or as of the
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Closing Date will have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and offer and
sale of the Offered Certificates by the Underwriters, and except for any
recordation of the respective assignments of the Mortgage Loan documents to the
Trustee pursuant to the Pooling and Servicing Agreement, which have not been
completed.
(m) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and the Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company.
(n) 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 Offered
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.
(o) 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; provided that this representation and warranty is
made on the basis of the assumption that the Mortgage Loan Seller delivered to
the Company good title to each Mortgage Loan, free and clear of any pledge,
mortgage, lien, security interest or other encumbrance.
(p) The transfer of the Mortgage Loans to the Trustee and the
sale of the Certificates by the Company, at the Closing Date, will be treated by
the Company for financial accounting and reporting purposes as a sale of assets
and not as a pledge of assets to secure debt.
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 or
notional 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,
expressed as a percentage of the aggregate principal or notional amount thereof
as of the Closing Date, is set forth in Schedule II hereto. There will be added
to the purchase price of the Offered Certificates interest 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"). Each Class of Offered Certificates will be represented by one
or more definitive global Certificates to be deposited by or on
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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 by 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 1:00 p.m. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Certificates for sale to the public as
set forth in the Prospectus. It is further understood that the Company in
reliance upon Policy Statement 105, has not filed and will not file an offering
statement pursuant to Section 352-e of the General Business Law of the State of
New York with respect to the Offered Certificates. As required by Policy
Statement 105, each Underwriter therefore covenants and agrees with the Company
that sales of the Offered Certificates made by such Underwriter in the State of
New York will be made only to institutional investors within the meaning of
Policy Statement 105.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will promptly advise the Underwriters (i)
when, during any period that a prospectus relating to the Offered Certificates
is required to be delivered under the Act, any amendment to the Registration
Statement affecting the Offered Certificates shall have become effective, (ii)
of any request by the Commission for any amendment to the Registration Statement
or the Prospectus, or for any additional information, affecting or in respect of
the Offered Certificates, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement affecting the
Offered Certificates or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will not file any amendment to the Registration
Statement affecting the Offered Certificates or any supplement to the Prospectus
unless the Company has furnished the Lead Manager with a copy for its review
prior to filing, and will not file any such proposed amendment or supplement to
which the Lead Manager reasonably objects, in any event until after the end of
the period during which a prospectus is required to be delivered to purchasers
of the Offered Certificates under the Act. Subject to the foregoing sentence,
the Company will cause the Prospectus Supplement to be transmitted to the
Commission for filing pursuant to Rule 424 under the Act by means reasonably
calculated to result in filing with the Commission pursuant to said Rule. The
Company will use its best efforts to prevent the issuance of any stop order
suspending the effectiveness of the Registration Statement affecting the Offered
Certificates and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) The Company will cause any Computational Materials and
Structural Term Sheets (each as defined in Section 9 below) with respect to the
Offered 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 (a "Current Report") pursuant to Rule 13a-11 under the Securities
Exchange Act of 1934, as amended (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 10:30 a.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
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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 10:30 a.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 10:30 a.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 incorporated by reference in the
Prospectus and the Registration Statement. Notwithstanding the foregoing
provisions of this Section 5(b), the Company shall have no obligation to file
any materials provided by the Underwriters pursuant to Section 9 which, in the
reasonable determination of the Company, are not required to be filed pursuant
to the No-Action Letters (as defined in Section 9 below), or contain erroneous
information or contain any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Computational Materials or ABS Term Sheets provided by the
Underwriters to the Company pursuant to Section 9 hereof. The Company shall give
notice to the Underwriters of its determination not to file any materials
pursuant to the preceding sentence and agrees to file such materials if the
Underwriters reasonably object to such determination within one business day
after receipt of such notice.
(c) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the Act or the rules under the Act, the
Company promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a post-effective
amendment to the Registration Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made effective as soon as
possible; provided, however, that the Company will not be required to file any
such amendment or supplement with respect to any Computational Materials or ABS
Term Sheets incorporated by reference in the Prospectus other than any
amendments or supplements of such Computational Materials or ABS Term Sheets
that are furnished to the Company pursuant to Section 9 hereof which the Company
determines to file in accordance therewith.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, for so long as delivery by an Underwriter
or dealer of a prospectus relating to the Offered Certificates may be required
by the Act, as many copies of the Prospectus, each Preliminary Prospectus, if
any, and any amendments and supplements thereto as the Underwriters may
reasonably request.
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(e) 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 Master Servicer and the Special Servicer pursuant to Sections 3.13 and
3.14 of the Pooling and Servicing Agreement, as soon as such statements are
furnished to the Company.
(f) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the Lead
Manager may designate and will maintain such qualification in effect so long as
required for the distribution of the Offered Certificates; provided, however,
that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(g) Whether or not the transactions contemplated in the
Pooling and Servicing Agreement are consummated or this Agreement is terminated,
the Company will pay or cause the payment of all expenses incident to the
performance of the obligations of the Company under this Agreement, including,
without limitation, (i) the fees, disbursements and expenses of the Company's
counsel in connection with the purchase of the Mortgage Loans and the issuance
and sale of the Offered Certificates, (ii) all fees and expenses incurred in
connection with the registration and delivery of the Offered Certificates under
the Act, and all other fees or expenses in connection with the preparation and
filing of the Registration Statement, any Preliminary Prospectus, the Prospectus
and any amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of copies
thereof to the Underwriters and dealers, in the quantities hereinabove
specified, (iii) all costs and expenses related to the transfer and delivery of
the Offered Certificates to the Underwriters, including any transfer or other
taxes payable thereon, (iv) the costs of printing or producing any "blue sky"
memorandum in connection with the offer and sale of the Offered Certificates
under state securities laws and all expenses in connection with the
qualification of the Offered Certificates for the offer and sale under state
securities laws as provided in Section 5(f), including, without limitation,
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
"blue sky" memorandum, (v) the cost of printing the Offered Certificates, (vi)
the costs and charges of any transfer agent, registrar or depository, (vii) the
fees and expenses of the Rating Agencies incurred in connection with the
issuance and sale of the Offered Certificates and (vii) all other costs and
expenses incident to the performance of the obligations of the Company hereunder
for which provision is not otherwise made in this Section; provided, however,
that the Underwriters shall be responsible for their out-of-pocket costs and
expenses.
(h) The Company shall deliver to the Underwriters a copy or
series of copies of the Prospectus (exclusive of information incorporated
therein and further exclusive of the exhibits and annexes to the Prospectus
Supplement) at or prior to the printing thereof, marked to show changes from the
Preliminary Prospectus.
6. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase the Offered Certificates as
provided in this Agreement shall be subject to the accuracy in all material
respects of the representations and warranties on the part of the Company
contained herein as of the date hereof and as of the Closing Date, to the
accuracy in all material respects of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance in all
material respects by the Company of its obligations hereunder and to the
following additional conditions with respect to the Offered Certificates:
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(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened; and the Prospectus Supplement
shall have been filed with the Commission within the time period prescribed by
the Commission.
(b) The 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 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 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 10 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
Pooling and Servicing Agreement or any other document or certificate delivered
on or before the Closing Date in connection with the transactions contemplated
herein or in the Pooling and Servicing Agreement, was at the respective times of
such signing and delivery, and is as of the Closing Date, duly elected or
appointed, qualified and acting as such officer or representative, and the
signature of such person appearing on any such documents and certificates is his
or her genuine signature; and (ii) no event (including, without limitation, any
act or omission on the part of the Company) 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 Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement and the Pooling and Servicing
Agreement.
(e) The Underwriters shall have received from Sidley & Austin,
its capacity as counsel for the Company, a favorable opinion, dated the Closing
Date and reasonably satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Registration Statement has become effective under the
Act.
(ii) To such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceedings
for that purpose have been instituted or threatened.
(iii) The Registration Statement, the Basic Prospectus and the
Prospectus Supplement, as of their respective effective or issue dates (other
than the financial statements, schedules and other financial and statistical
information contained therein or omitted therefrom, as to which such counsel
need express no opinion), complied as to form in all material respects with the
applicable requirements of the Act and the rules and regulations thereunder.
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(iv) To such counsel's knowledge, there are no material
contracts, indentures or other documents relating to the Offered Certificates of
a character required to be described or referred to in the Registration
Statement or the Prospectus Supplement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein or
filed or incorporated by reference as exhibits thereto.
(v) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware and has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(vi) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the Company.
(vii) Each of the Pooling and Servicing Agreement and this
Agreement constitutes a valid, legal and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to: (A)
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing and the doctrine of estoppel; (B) the possible
unavailability of specific performance and injunctive relief, regardless of
whether considered in a proceeding in equity or at law; (C) the effect of
certain laws, rules, regulations and judicial and other decisions upon the
enforceability of (1) any provision that purports to waive (x) the application
of any federal, state or local statute, rule or regulation, (y) the application
of any general principles of equity or (z) the obligation of diligence, (2) any
provision that purports to grant any remedies that would not otherwise be
available at law, to restrict access to any particular legal or equitable
remedies, to make any rights or remedies cumulative and enforceable in addition
to any other right or remedy, to provide that the election of any particular
remedy does not preclude recourse to one or more other remedies, to provide that
the failure to exercise or the delay in exercising rights or remedies will not
operate as a waiver of such rights or remedies, to impose penalties or
forfeitures, or to provide for set-off in the absence of mutuality between the
parties, (3) any provision that purports to release, exculpate or exempt a party
from, or indemnify a party for, liability for any act or omission on its part
that constitutes negligence, recklessness or willful or unlawful conduct, (4)
any provision that purports to govern matters of civil procedure, including any
such provision that purports to establish evidentiary standards, to waive
objections to venue or forum, to confer subject matter jurisdiction on any court
that would not otherwise have such jurisdiction or to waive any right to a jury
trial, or (5) any provision that purports to render unenforceable any
modification, waiver or amendment that is not executed in writing, to sever any
provision of any agreement, to appoint any person or entity as the
attorney-in-fact of any other person or entity or to provide that any agreement
or any particular provision thereof is to be governed by or construed in
accordance with the laws of any jurisdiction other than the State of New York;
(D) bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, fraudulent conveyance and transfer, moratorium and other similar
laws affecting the rights of creditors or secured parties generally; and (E)
public policy considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of any provision of
any agreement that purports or is construed to provide indemnification with
respect to securities law violations.
(viii) The Offered Certificates, when duly and validly
executed, authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this Agreement, will be
entitled to the benefits of the Pooling and Servicing Agreement.
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(ix) Neither the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement nor the consummation of any of the other
transactions contemplated by, or the fulfillment by the Company of the terms of,
this Agreement and the Pooling and Servicing Agreement, will conflict with,
result in a material breach, violation or acceleration of or constitute a
material default under the terms of any indenture or other material agreement or
instrument known to such counsel (based solely on a certification by the
Company) to which the Company is a party or by which it is bound, or conflict
with or result in a breach or violation of any term or provision of the
certificate of incorporation or by-laws of the Company or any federal or State
of New York statute or regulation, except such counsel need express no opinion
as to compliance with the securities laws of the State of New York and other
particular States in connection with the purchase and the offer and sale of the
Offered Certificates by the Underwriters.
(x) No consent, approval, authorization or order of any
federal or State of New York court, agency or other governmental body is
required for the consummation by the Company of the transactions contemplated by
the terms of this Agreement and the Pooling and Servicing Agreement, except such
as may be required under the securities laws of the State of New York and other
particular States in connection with the purchase and the offer and sale of the
Offered Certificates by the Underwriters as to which such counsel need express
no opinion, and except such as have been obtained.
(xi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended. The Trust Fund is
not required to be registered under the Investment Company Act of 1940, as
amended.
(xii) The statements set forth in the Prospectus Supplement
under the headings "Description of the Offered Certificates" and "Servicing of
the Underlying Mortgage Loans" and in the Basic Prospectus under the headings
"Description of the Certificates" and "Description of the Governing Documents",
insofar as such statements purport to summarize certain material provisions of
the Offered Certificates and the Pooling and Servicing Agreement, are accurate
in all material respects.
(xiii) The statements set forth in each of the Prospectus
Supplement and the Basic Prospectus under the headings "ERISA Considerations",
"Federal Income Tax Consequences" and "Legal Investment", to the extent that
they purport to describe certain matters of federal law or legal conclusions
with respect thereto, while not discussing all possible consequences of an
investment in the Offered Certificates to all investors, provide in all material
respects an accurate summary of such matters and conclusions set forth under
such headings.
(xiv) As described in the Prospectus Supplement, and assuming
compliance with all the provisions of the Pooling and Servicing Agreement, (A)
REMIC I will qualify as a REMIC within the meaning of Sections 860A through 860G
of the Internal Revenue Code of 1986 in effect on the date hereof (the "REMIC
Provisions") and the REMIC I Regular ----------------- Interests (as defined in
the Pooling and Servicing Agreement) will be "regular interests" and the Class R
Certificates will evidence the sole class of "residual interests" in REMIC I (as
both terms are defined in the REMIC Provisions in effect on the Closing Date),
(B) REMIC II will qualify as a REMIC within the meaning of the REMIC Provisions,
and the REMIC II Regular Interests (as defined in the Pooling and Servicing
Agreement) will be "regular interests" and the Class R Certificates will
evidence the sole class of "residual interests" in REMIC II, and (C) REMIC III
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will qualify as a REMIC within the meaning of the REMIC
Provisions, and the Class S, Class A-1A, Class A-1B, Class
A-2, Class A-3, Class A-4, Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class C
and Class D Certificates will evidence "regular interests" and
the Class R-III Certificates will evidence the sole class of
"residual interests" in REMIC III.
(xv) The portions of the Trust Fund consisting of
Grantor Trust E and Grantor Trust R (each as defined in the
Pooling and Servicing Agreement) will each be classified as a
grantor trust under subpart E, part I of subchapter J of the
Internal Revenue Code of 1986.
Such opinion (w) may express its reliance as to factual
matters on certificates of public officials and the representations and
warranties made by, and on certificates or other documents furnished by officers
of, the parties to this Agreement and the Pooling and Servicing Agreement, (x)
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto, other than the Company,
(y) may otherwise be based on such assumptions as may be reasonably acceptable
to counsel for the Underwriters, and (z) need cover only on the law of the State
of New York, the federal law of the United States of America and the General
Corporation Law of the State of Delaware.
(f) The Underwriters shall have received from Sidley & Austin,
in its capacity as counsel to the Company, the Underwriters and the Mortgage
Loan Seller, a letter, dated the Closing Date, to the effect that, based on such
counsel's participation in conferences with officers and other representatives
of the Company, the Master Servicer, the Special Servicer, the Trustee, the
Underwriters, the Mortgage Loan Seller and their respective counsel (in addition
to us), at which the contents of the Registration Statement and the Prospectus
were discussed and, although such counsel need not pass upon or assume
responsibility for the actual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xii) and (xiii) above) and need not make an independent
check or verification thereof, on the basis of the foregoing, such counsel shall
also confirm that nothing has come to the attention of such counsel that would
lead such counsel to believe that the Registration Statement (other than (x)
financial statements, schedules and other numerical, financial and statistical
data included therein or omitted therefrom and (y) the documents incorporated
therein, as to which such counsel need express no opinion), as of its effective
date, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of the Prospectus
Supplement or as of the Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (other than (x) financial statements, schedules and
other numerical, financial and statistical data included therein or omitted
therefrom and (y) the documents incorporated therein, as to which such counsel
need express no opinion).
(g) The Underwriters shall have received, with respect to each
of the Master Servicer, the Special Servicer and the Trustee, a favorable
opinion of counsel, dated the Closing Date and satisfactory to counsel for the
Underwriters, addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party and, subject to such
limitations as are acceptable to counsel for the Underwriters, the
enforceability of the Pooling and Servicing Agreement against such party. Such
opinion may express its reliance as to factual matters on certificates of public
officials and on representations and warranties made by, and on certificates or
other documents furnished by officers
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<PAGE>
and/or authorized representatives of parties to, this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered and be based upon
such other assumptions as may be reasonably acceptable to counsel for the
Underwriters. Such opinion may be qualified as an opinion only on the laws of
the jurisdiction wherein the subject party is organized, the laws of the State
of New York and the federal law of the United States.
(h) The Underwriters shall have received from Arthur Andersen
LLP, certified public accountants, letters dated the date of the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, 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 letters, they have
recalculated such numbers and percentages set forth in the Preliminary
Prospectus Supplement and the Prospectus Supplement as the Underwriters may
reasonably request and as are agreed to by Arthur Andersen LLP, compared the
results of their calculations to the corresponding items in the Preliminary
Prospectus Supplement and the Prospectus Supplement, respectively, and found
each such number and percentage set forth in the Preliminary Prospectus
Supplement and the Prospectus Supplement, respectively, to be in agreement with
the results of such calculations.
(i) The Underwriters shall have received all opinions,
certificates and other documents required under the Mortgage Loan Purchase
Agreement to be delivered by the Mortgage Loan Seller and its counsel in
connection with its sale of the Mortgage Loans to the Company, and such opinion
shall be dated the Closing Date and addressed to the Underwriters.
(j) The Underwriters shall have received all opinions rendered
to the Rating Agencies by counsel to the Company and the Mortgage Loan Seller,
and each such opinion shall be dated the Closing Date and addressed to the
Underwriters.
(k) The Offered Certificates shall have been rated as
indicated on Schedule II by the rating agency or agencies identified on such
Schedule and such ratings shall not have been rescinded.
(l) All proceedings in connection with the transactions
contemplated by this Agreement, and all documents incident hereto and thereto,
shall be reasonably satisfactory in form and substance to the Lead Manager and
counsel for the Underwriters.
(m) Subsequent to the date hereof, there shall not have
occurred any change, or development including a prospective change, in or
affecting the business or properties of the Company which, in the judgment of
the Underwriters after consultation with the Company, materially impairs the
investment quality of the Lead Manager so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the Offered
Certificates as contemplated in the Prospectus.
7. Cancellation for Failure to Perform. If any of the
conditions specified in Section 6 shall not have been fulfilled in all material
respects when and as provided by this Agreement, or if any of the opinions and
certificates mentioned in Section 6 or elsewhere in this Agreement shall not be
in all material respects reasonably satisfactory in form and substance to the
Lead Manager and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Lead Manager. Notice of such cancellation
shall be given to the Company in writing, or by telephone or by either telegraph
or telecopier confirmed in writing.
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8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls such Underwriter within the meaning of
the Act or the Exchange Act, against any and all losses, claims, damages,
liabilities, costs and expenses, joint or several, to which such Underwriter or
any such controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities, costs and
expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment of or supplement to any such document, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and will
reimburse each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending against such loss, claim, damage, liability, cost, expense or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability, cost or expense (A) arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus Supplement or
the Prospectus Supplement (or any amendment thereof or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein, (B) arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) in reliance upon and
in conformity with (1) the Master Tape (it being acknowledged that the Master
Tape was used to prepare any Preliminary Prospectus Supplement and the
Prospectus Supplement, including, without limitation, Exhibit A-1 and Exhibit
A-2 thereto and the accompanying diskette), (2) the representations and
warranties of the Mortgage Loan Seller set forth in or made pursuant to the
Mortgage Loan Purchase Agreement or (3) any other information concerning the
characteristics of the Mortgage Loans, the Mortgaged Properties or the Borrowers
furnished to the Company by the Mortgage Loan Seller, or (C) arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment thereof or supplement thereto) with respect to the
Mortgage Loans, the Mortgaged Properties, the Borrowers and/or the Mortgage Loan
Seller under the headings "Summary of the Prospectus Supplement--The Underlying
Mortgage Loans and the Mortgaged Real Properties", "Risk Factors--Risks Related
to the Underlying Mortgage Loans" and "Description of the Mortgage Pool" therein
or on Exhibit A-1 or Exhibit A-2 thereto or on the accompanying diskette, or (D)
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Computational Materials or ABS Term
Sheets (or any amendments thereof or supplements thereto) furnished to
prospective investors and made a part of, or incorporated by reference into, the
Registration Statement or in any Preliminary Prospectus or the Prospectus (or
any amendment thereof or supplement thereto) by reason of a filing made pursuant
to Section 9 (it being understood and agreed that if any ABS Term Sheet is both
incorporated by reference into the Prospectus or any Preliminary Prospectus and
also actually included therein, this clause (D) is intended solely to exclude
the version of such ABS Term Sheet that is incorporated by reference therein);
and provided, further, that such indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or any person
controlling any Underwriter) from whom the person asserting any such loss,
claim, damage, liability, cost or expense purchased the Offered Certificates
which are the subject thereof if such Underwriter did not deliver to such person
a copy of the Prospectus (or the Prospectus as most recently amended or
supplemented) at or prior to the confirmation of the sale of such Certificates
to such person in any case where such delivery is required by the Act, the
Company has previously furnished to
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such Underwriter copies thereof in sufficient quantity and the untrue statement
or omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as most recently amended or
supplemented) and such correction would have cured the defect giving rise to any
such loss, claim, damage, liability, cost or expense. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, against any
and all losses, claims, damages, liabilities, costs and expenses to which the
Company or any such director, officer or controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities, costs and expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in (i) any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto), or (ii)
any Computational Materials or ABS Term Sheets (or amendments thereof or
supplements thereto) delivered to prospective investors by such Underwriter and
furnished to the Company by such Underwriter pursuant to or as contemplated by
Section 9 and made a part of, or incorporated by reference in, the Registration
Statement or in any Preliminary Prospectus Supplement or the Prospectus (or any
amendment thereof or supplement thereto) by reason of a filing made pursuant to
Section 9, or arise out of or are based on the omission or alleged omission to
state in any such document a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made (and, in
the case of Computational Materials and ABS Term Sheets, when read in
conjunction with the Prospectus), not misleading; provided, however, that no
Underwriter shall be liable for any such loss, claim, damage, liability, cost or
expense that arises out of an untrue statement or alleged untrue statement or
omission or alleged omission in any Preliminary Prospectus Supplement or the
Prospectus Supplement (or any amendment thereof or supplement thereto),
including, without limitation, any ABS Term Sheet actually included therein,
except to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information relating to such Underwriter furnished to the Company by
such Underwriter specifically for use in such document; and provided, further,
that no Underwriter shall be liable to the extent that any loss, claim, damage,
liability, cost or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in any Computational
Materials or ABS Term Sheets (or any amendment thereof or supplement thereto)
made in reliance upon and in conformity with (A) the Master Tape (it being
acknowledged that the Master Tape was used to prepare any Computational
Materials and ABS Term Sheets), (B) the representations and warranties of the
Mortgage Loan Seller set forth in or made pursuant to the Mortgage Loan Purchase
Agreement or (C) any other information concerning the characteristics of the
Mortgage Loans, the Mortgaged Properties or the Borrowers furnished to the
Underwriters by the Company or the Mortgage Loan Seller (the error in the Master
Tape or any such other information concerning the characteristics of the
Mortgage Loans, the Mortgaged Properties or the Borrowers or the breach in such
representations and warranties that gave rise to such untrue statement or
omission, a "Collateral Error"), except to the extent that the Mortgage Loan
Seller or the Company notified such Underwriter in writing of such Collateral
Error or provided in written or electronic form information superseding or
correcting such Collateral Error (in any case, a "Corrected Collateral Error")
prior to the time of confirmation of sale to the person that purchased the
Offered Certificates that are the subject of any such loss, claim, damage,
liability, cost or expense, or action in respect thereof, and such Underwriter
failed to deliver to such person corrected Computational Materials or ABS Term
Sheets (or, if the superseding or correcting information was contained in the
Prospectus, failed to deliver to such person the Prospectus as amended or
supplemented) at or prior to confirmation of such sale to such
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<PAGE>
person. This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. For all purposes of this Agreement, the Company
acknowledges that the statements set forth in the fifth sentence of the last
paragraph of the cover page, the two sentences under the heading "Summary of
Prospectus Supplement--Relevant Parties--Underwriters", and the two sentences in
the second paragraph, the first and second sentences of the third paragraph and
the first sentence of the fifth paragraph under the heading "Method of
Distribution" in the Prospectus Supplement and any Preliminary Prospectus
Supplement constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the documents referred to in the
foregoing indemnity (other than any Computational Materials or ABS Term Sheets
(or amendments thereof or supplements thereto) furnished to the Company by any
Underwriter for filing pursuant to Section 9, any such ABS Term Sheet to be
treated separately from any version thereof actually included in the
Prospectus), and you confirm that such statements are correct. Any Computational
Materials or ABS Term Sheets (or amendments thereof or supplements thereto) so
furnished to the Company by a particular Underwriter shall relate exclusively to
and be, to the extent provided herein, the several responsibility of such
Underwriter and no other Underwriter.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) of this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under paragraph (a) or (b) of this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
paragraph (a) or (b), as applicable, of this Section 8. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party); provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party, and if the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Lead Manager in the case of
paragraph (a) of this Section 8 and by the Company in the case of paragraph (b)
of this Section 8, representing the indemnified parties under such paragraph (a)
or (b), as the case may be, who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental
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agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 8
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages,
liabilities, costs or expenses referred to in and intended to be covered under
such paragraph (a) or (b), as the case may be, above, then the indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities, costs or expenses as
follows:
(i) in the case of any such losses, claims, damages,
liabilities, costs and expenses (or actions in respect thereof)
referred to in and intended to be covered under paragraph (a) above, in
such proportion so that the Underwriters ------------- are responsible
for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the total purchase price
of the Offered Certificates specified in Schedule II hereto and the
Company is responsible for the balance (or, if such allocation is not
permitted by applicable law or if the indemnified party failed to give
the notice required in Section 8(c) or in the last paragraph of this
Section ------------- -------- 8(d), in such proportion as would be
determined pursuant to the immediately following clause (ii));
provided, ----------- however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating
to the offering of the Offered Certificates) be responsible under this
subparagraph (i) for any amount ---------------- in excess of the
underwriting discount applicable to the Offered Certificates purchased
by such Underwriter hereunder; and
(ii) in the case of any losses, claims, damages, liabilities,
costs and expenses (or actions in respect thereof) referred to in and
intended to be covered under paragraph (b) above, in such proportion as
is appropriate to ------------- reflect the relative fault of the
Company on the one hand and the Underwriters on the other in connection
with the statement or omissions which resulted in such losses, claims,
damages, liabilities, costs or expenses (or actions in respect thereof)
as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact that is the basis
for such loss, claim, damage, liability, cost or expense, results from
information prepared by the Company on the one hand or the Underwriters
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
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 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,
liabilities, costs or expenses (or actions in respect thereof) referred to above
in this Section 8 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, which expenses the indemnifying party
shall pay as and when incurred, at the request of the indemnified party, to the
extent that the indemnifying party will be ultimately obligated to pay such
expenses. If any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the
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indemnified party that received such payment shall promptly refund the amount so
paid to the indemnifying party.
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. For purposes of
this Section 8(d), each person who controls an Underwriter within the meaning of
the Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
preceding sentence of this Section 8(d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8(d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any liability it or they may have otherwise than
under this Section 8(d).
9. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., New York City time, on the date
hereof, the Underwriters shall deliver to the Company and its counsel, as
provided below, 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 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 Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Kidder/PSA Letters") or (ii) "ABS
Term Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter" and, together with the Kidder/PSA
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 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 10:30 a.m., New York City time, on the first business day
following the date on which such materials were initially provided to a
potential investor;
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<PAGE>
(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, except for any
Preliminary Prospectus 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) on the respective dates any Computational Materials
and/or ABS Term Sheets with respect to the Offered Certificates
referred to in Section 9(b)(ii) were last furnished by such Underwriter
to each prospective investor, on the date of delivery thereof to the
Company pursuant to or as contemplated by this Section 9 and on the
Closing Date, such Computational Materials and/or ABS Term Sheets did
not and will not include any untrue statement of a material fact or,
when read in conjunction with the Prospectus, omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(iv) at the time any Computational Materials or ABS Term
Sheets with respect to the Offered Certificates were furnished by such
Underwriter to a prospective investor and on the date hereof, the such
Underwriter possessed, and on the date of delivery of such materials to
the Company pursuant to or as contemplated by this Section 9 and on the
Closing Date, such Underwriter will possess, the capability, knowledge,
expertise, resources and systems of internal control necessary to
ensure that such Computational Materials and/or ABS Term Sheets conform
to the representations and warranties of the such Underwriter contained
in subparagraphs (ii) and (iii) above of this Section 9(b);
(v) all Collateral Term Sheets with respect to the Offered
Certificates furnished by such Underwriter to prospective 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;
(vi) all Computational Materials and ABS Term Sheets with
respect to the Offered Certificates furnished by such Underwriter to
prospective investors contained and will contain a legend generally to
the effect that the Company has not participated in the preparation of
or authorized the distribution of such Computational Materials or ABS
Term Sheets; and
(vii) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS
Term Sheets or other materials relating to the Offered Certificates
(whether in written, electronic or other format) to any potential
investor unless such potential investor has received a Prospectus prior
to or at the same time as the delivery of such Computational Materials,
ABS Term Sheets or other materials;
provided that no Underwriter makes any representation or warranty as to whether
any Computational Materials or ABS Term Sheets with respect to the Offered
Certificates included or will include any untrue statement or omission resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriter from the
19
<PAGE>
Mortgage Loan Seller or the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Corrected Collateral Error).
(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 any Underwriter or counsel for the Underwriters to amend or
supplement the Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or ABS Term Sheets provided by the
Underwriters pursuant to or as contemplated by this Section 9 or the omission to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made (and 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 Exchange Act or the
rules thereunder, the Underwriters, at their expense (such expense to be
allocated among them based on the relative fault of the Underwriters) (or, if
such amendment or supplement is necessary in order for any Current Report to
comply with the Act or the Exchange Act or the rules thereunder, at the expense
of the Company), shall prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance and shall distribute
such amendment or supplement to each prospective investor in the Offered
Certificates that received such information being amended or supplemented. The
Company shall have no obligation to file such amendment or supplement if the
Company determines that (i) such amendment or supplement contains any untrue
statement of a material fact or, when read in conjunction with the Prospectus,
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (c)) or (ii) such filing is not required under the Act. Each
Underwriter represents and warrants to the Company, as of the date of delivery
of such amendment or supplement to the Company, that such amendment or
supplement will not include any untrue statement of a material fact or, when
read in conjunction with the Prospectus, omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. Notwithstanding the foregoing, no Underwriter
makes any representation or warranty as to whether any such amendment or
supplement of Computational Materials or ABS Term Sheets with respect to the
Offered Certificates included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from the
Mortgage Loan Seller or the Company of notice of such Collateral Error or
materials superseding or correcting such Collateral Error).
(d) 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 or counsel for the Company 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
pursuant to or as contemplated by this Section 9 or the omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they made (and 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 Exchange Act or the
rules thereunder, the Company promptly will notify each Underwriter of the
necessity of such amendment or supplement, and the Underwriters, at their
expense (such expense to be allocated among them based on the relative fault of
the Underwriters) (or, if such amendment or supplement is necessary in order for
any Current Report to comply with the Act or the Exchange Act or the rules
thereunder, at the expense of the Company), shall prepare and furnish to the
Company for filing with the Commission an amendment or supplement which
20
<PAGE>
will correct such statement or omission or an amendment which will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Offered Certificates that received such information being
amended or supplemented. Each Underwriter represents and warrants to the
Company, as of the date of delivery of such amendment or supplement to the
Company, that such amendment or supplement will not include any untrue statement
of a material fact or, when read in conjunction with the Prospectus, omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Notwithstanding
the foregoing, no Underwriter makes any representation or warranty as to whether
any such amendment or supplement of Computational Materials or ABS Term Sheets
with respect to the Offered Certificates included or will include any untrue
statement resulting directly from any Collateral Error (except any Corrected
Collateral Error, with respect to materials prepared after the receipt by the
Underwriters from the Mortgage Loan Seller or the Company of notice of such
Collateral Error or materials superseding or correcting such Collateral Error).
(e) The Underwriters (at their own expense) further agree to
provide to the Company any accountants' letters obtained relating to the
Computational Materials and/or ABS Term Sheets, which accountants' letters shall
be addressed to the Company or shall state that the Company may rely thereon;
provided that the Underwriters shall have no obligation to procure any such
letters.
10. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the
amount of the Offered Certificates agreed by such Underwriter to be purchased
under this Agreement (such Underwriter being a "Defaulting Underwriter"), upon
tender of such Offered Certificates in accordance with the terms hereof, and the
amount of the Offered Certificates not purchased does not aggregate more than
10% of the total amount of the Offered Certificates set forth in Schedule I
hereof (based on aggregate purchase price), the remaining Underwriters shall be
obligated to take up and pay for the Offered Certificates that the withdrawing
or defaulting Underwriter agreed but failed to purchase (pro rata based on the
aggregate purchase prices agreed to be paid by the non-Defaulting Underwriters
for their respective allocations of the Offered Certificates, as set forth on
Schedules I and II hereof).
(b) If any Underwriter shall fail to take up and pay for the
amount of the Offered Certificates agreed by such Underwriter to be purchased
under this Agreement, upon tender of such Offered Certificates in accordance
with the terms hereof, and the amount of the Offered Certificates not purchased
aggregates more than 10% of the total amount of the Offered Certificates set
forth in Schedule I hereto (based on aggregate purchase price), and arrangements
satisfactory to the remaining Underwriters and the Company for the purchase of
such Certificates by other persons are not made within 36 hours thereafter, this
Agreement shall terminate. In the event of any such termination, the Company
shall not be under any liability to any Underwriter (except to the extent
provided in Section 5(g) and Section 8 hereof) nor shall any Underwriter (other
than an Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of the Offered
Certificates such Underwriter agreed to purchase hereunder) be under any
liability to the Company (except to the extent provided in Section 5(g), Section
8 and Section 9 hereof). Nothing herein shall be deemed to relieve any
Defaulting Underwriter from any liability it may have to the Company or the
other Underwriters by reason of its failure to take up and pay for Offered
Certificates as agreed by such Defaulting Underwriter.
11. Termination Upon the Occurrence of Certain Events. This
Agreement shall be subject to termination in the absolute discretion of the Lead
Manager by notice given to the Company
21
<PAGE>
prior to delivery of and payment for all Offered Certificates if prior to such
time (i) trading in securities of the Company or any affiliate on the New York
Stock Exchange shall have been suspended or limited, or minimum prices shall
have been established on such Exchange, (ii) a banking moratorium shall have
been declared by either federal or New York State authorities, or (iii) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis, the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Lead Manager, impractical
to market the Offered Certificates.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Offered Certificates. The
provisions of Sections 5(g), 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
13. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any Underwriter, will be mailed,
delivered or either telegraphed or transmitted by telecopier and confirmed to it
at its address set forth on Schedule I hereto (or, in the case of any
Underwriter, at such other address as may be furnished by such Underwriter to
the Company); or, if sent to the Company, will be mailed, delivered or either
telegraphed or transmitted by telecopier and confirmed to it at 277 Park Avenue,
9th Floor, New York, New York 10172, Attention: N. Dante LaRocca (or at such
other address as may be furnished by the Company to each Underwriter in
accordance with this Section 13).
14. Beneficiaries. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors, heirs and legal representatives, and no other person will have
any right or obligation hereunder.
15. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against who enforcement
of such change, waiver, discharge or termination is sought to be enforced. This
Agreement will be governed by and construed in accordance with the substantive
laws of the State of New York applicable to agreements made and to be performed
entirely in said State. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall together constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
22
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
DLJ COMMERCIAL MORTGAGE CORP.
By:__________________________________
Name:
Title:
Accepted at New York, New York
as of the date first written above.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:_____________________________
Name:
Title:
Accepted at New York, New York
as of the date first written above.
GOLDMAN, SACHS & CO.
By:_____________________________
Name:
Title:
Accepted at New York, New York
as of the date first written above.
SALOMON SMITH BARNEY INC.
By:_____________________________
Name:
Title:
23
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL OR NOTIONAL
AMOUNT OF RELEVANT
CLASS OF OFFERED
UNDERWRITERS (AND ADDRESSES) CLASS CERTIFICATES TO BE PURCHASED
--------------------------- ----- -----------------------------
<S> <C> <C>
Donaldson, Lufkin & Jenrette Class S $886,241,440(1)
Securities Corporation Class A-1A $86,074,240
277 Park Avenue Class A-1B $526,752,000
New York, New York 10172 Class A-2 $44,312,000
Attention: N. Dante LaRocca Class A-3 $37,665,000
Class A-4 $13,294,000
Class B-1 $31,018,000
Class B-2 $11,078,000
Goldman, Sachs & Co. Class S N/A
85 Broad Street Class A-1A $4,995,380
New York, New York 10004 Class A-1B $19,824,000
Attention: Chistine Kwak Class A-2 N/A
Class A-3 N/A
Class A-4 N/A
Class B-1 N/A
Class B-2 N/A
Salomon Smith Barney Inc. Class S N/A
388 Greenwich Street, 11th Floor Class A-1A $4,995,380
New York, New York 10013 Class A-1B $19,824,000
Attention: Paul Vanderslice Class A-2 N/A
Class A-3 N/A
Class A-4 N/A
Class B-1 N/A
Class B-2 N/A
----------------
(1) Notional Amount
</TABLE>
24
<PAGE>
SCHEDULE II
Registration Statement No. 333-82275
Basic Prospectus dated June 20, 2000
Prospectus Supplement dated June 20, 2000
Title of Offered Certificates: Commercial Mortgage
Pass-Through Certificates,
Series 2000-CF1, Class S,
Class A-1A, Class A-1B,
Class A-2, Class A-3,
Class A-4, Class B-1 and
Class B-2
Cut-off Date: June 1, 2000
Closing: 10:00 a.m. on June 27, 2000
at the offices of
Sidley & Austin
875 Third Avenue
New York, New York 10022
25
<PAGE>
SCHEDULE II (CONTINUED)
<TABLE>
<CAPTION>
INITIAL
AGGREGATE PRINCIPAL
OR NOTIONAL INITIAL
CLASS DESIGNATION AMOUNT OF CLASS(1) PASS-THROUGH RATE PURCHASE PRICE(2) RATING (3)
----------------- ------------------ ----------------- ----------------- ----------
<S> <C> <C> <C>
Class S $886,241,440(4) 0.7463% 5.152200% AAAr/AAA
Class A-1A $96,065,000 7.4500% 100.000000% AAA/AAA
Class A-1B $566,400,000 7.6200% 100.468750% AAA/AAA
Class A-2 $44,312,000 7.7600% 100.515625% AA/AA
Class A-3 $37,665,000 7.9200% 100.406250% A/A
Class A-4 $13,294,000 8.0200% 100.484375% A-/A-
Class B-1 $31,018,000 8.3473% 100.484375% BBB/BBB
Class B-2 $11,078,000 8.3300% 98.031250% BBB-/BBB-
------------------
</TABLE>
(1) Plus or minus a permitted variance of 5%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Offered Certificates to be purchased.
The purchase price for each class of the Offered Certificates will also
include accrued interest at the initial Pass-Through Rate therefor on the
aggregate stated or notional amount, as applicable, thereof to be
purchased from the Cut-off Date to but not including the Closing Date.
(3) By each of S&P and Fitch, respectively
(4) Aggregate Notional Amount.
26
