XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
(a Delaware Corporation)
UNDERWRITING AGREEMENT
$563,395,000 (Approximate)
Mortgage Pass-Through Certificates, Series 1998-C3
December 22, 1998
TABLE OF CONTENTS
1. Representations and Warranties...............................................................................2
(a) Representations and Warranties by the Company..........................................................2
(i) Compliance with Registration Requirements.....................................................2
(ii) Incorporated Documents.......................................................................3
(iii) No Material Adverse Change in Business......................................................4
(iv) Good Standing of the Company.................................................................4
(v) Authorization of Agreement....................................................................4
(vi) Authorization of Other Agreements............................................................4
(vii) Description of the Pooling and Servicing Agreement..........................................4
(viii) Description of the Certificates............................................................5
(ix) Absence of Defaults and Conflicts............................................................5
(x) Absence of Labor Dispute......................................................................6
(xi) Absence of Proceedings.......................................................................6
(xii) Accuracy of Exhibits........................................................................6
(xiii) Possession of Intellectual Property........................................................6
(xiv) Absence of Further Requirements.............................................................7
(xv) Possession of Licenses and Permits...........................................................7
(xvi) Tax Returns.................................................................................7
(xvii) Investment Company Act.....................................................................8
(xviii) Environmental Laws........................................................................8
(xix) No Liens....................................................................................8
(xx) Sale of Mortgage Loans.......................................................................9
(xxi) Ratings.....................................................................................9
(xxii) Taxes......................................................................................9
(b) Officer's Certificates.................................................................................9
2. Sale and Delivery to the Underwriters; Closing...............................................................10
(a) Certificates...........................................................................................10
(b) Payment................................................................................................10
(c) Denominations; Registration............................................................................10
3. Covenants of the Company....................................................................................10
(a) Compliance with Securities Regulations and Commission Requests.........................................10
(b) Filing of Amendments...................................................................................11
(c) Delivery of Registration Statements....................................................................11
(d) Delivery of Prospectuses...............................................................................11
(e) Continued Compliance with Securities Laws..............................................................11
(f) Blue Sky Qualifications................................................................................12
(g) Reporting Requirements.................................................................................12
(h) Rating of Certificates.................................................................................12
(i) DTC....................................................................................................12
(j) Restriction on Sale of Securities......................................................................13
4. Payment, of Expenses........................................................................................13
(a) Expenses...............................................................................................13
(b) Termination of Agreement...............................................................................13
5. Conditions of Underwriters' Obligations.....................................................................13
(a) Effectiveness of Registration Statement................................................................14
i
(b) Opinion of Counsel for the Master Servicer and the Special Servicer....................................14
(c) Opinion of Counsel for the Underwriters................................................................14
(d) Officers' Certificate of the Company...................................................................14
(e) Officers' Certificates of the Master Servicer and the Special Servicer.................................14
(f) Accountant's Comfort Letter............................................................................15
(g) Bring-down Comfort Letter..............................................................................15
(h) Maintenance of Rating..................................................................................15
(i) Underwriter Opinion of Counsel for Trustee.............................................................15
(j) Opinion of Tax and ERISA Counsel.......................................................................15
(k) Opinion of Counsel for the Company.....................................................................15
(l) Additional Documents...................................................................................16
(m) Termination of Agreement...............................................................................16
6. Indemnification..............................................................................................16
(a) Indemnification of Underwriter..........................................................................16
(b) Indemnification of the Company, Directors and Officers..................................................18
(c) Actions against Parties; Notification...................................................................19
(d) Settlement without Consent if Failure to Reimburse......................................................20
7. Contribution.................................................................................................20
8. Representations, Warranties and Agreements to Survive Delivery...............................................22
9. Termination of Agreement.....................................................................................22
(a) Termination; General....................................................................................22
(b) Liabilities.............................................................................................22
10. Notices.....................................................................................................22
11. Parties.....................................................................................................23
12. GOVERNING LAW AND TIME......................................................................................23
13. Effect of Headings..........................................................................................23
14. Miscellaneous...............................................................................................23
ii
$563,395,000 (Approximate)
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
(a Delaware corporation)
Mortgage Pass-Through Certificates, Series 1998-C3
UNDERWRITING AGREEMENT
----------------------
December 22, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware
corporation (the "Company"), confirms its agreement with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (referred to herein as "MLPF&S" or the
"Underwriter"), with respect to the issue and sale by the Company and the
purchase by each Underwriter of the initial certificate balance set forth in
Schedule A hereto of $563,395,000 (Approximate) aggregate initial certificate
balance of the Company's Mortgage Pass-Through Certificates, Series 1998-C3
(the "Certificates"). The Certificates will evidence beneficial ownership
interests in a trust fund (the "Trust Fund") to be formed by the Company and
consisting primarily of a segregated pool (the "Mortgage Pool") of multifamily
and commercial mortgage loans (the "Mortgage Loans") to be purchased from
Xxxxxxx Xxxxx Mortgage Capital Inc., (the "Mortgage Loan Seller"). The
Certificates are to be issued pursuant to a pooling and servicing agreement,
dated as of December 1, 1998 (the "Pooling and Servicing Agreement"), among the
Company as depositor, The Chase Manhattan Bank as trustee (the "Trustee"), GE
Capital Loan Services, Inc. as master servicer (in such capacity, the "Master
Servicer") and GE Capital Realty Group, Inc. as special servicer (in such
capacity, the "Special Servicer"). Certificates issued in book-entry form will
be issued to Cede & Co. as nominee of The Depository Trust Company ("DTC")
pursuant to a letter agreement, to be dated as of the Closing Time (as defined
in Section 2(b)) (the "DTC Agreement"), among the Depositor, the Trustee and
DTC.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-38073) relating to the Certificates, and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "1933 Act"), and has filed, and proposes to file, such amendments thereto
as may have been required to the date hereof and as shall be
required to the effective date thereof pursuant to the 1933 Act and the rules
of the Commission thereunder (the "1933 Act Regulations"). Such registration
statement, as amended at the time when each becomes effective under the 1933
Act and at the Closing Time defined below, is referred to herein as the
"Registration Statement". The Company proposes to file with the Commission
pursuant to Rule 424(b)(5) under the 1933 Regulations a supplement (the
"Prospectus Supplement") to the form of prospectus (as may be amended in
connection with such Prospectus Supplement, the "Basic Prospectus"; the Basic
Prospectus, together with the Prospectus Supplement, the "Prospectus"). Any
preliminary form of the Prospectus that has heretofore been filed pursuant to
Rule 424(b) or prior to the effective date of the Registration Statement,
pursuant to Rule 402(a) or 424(a) is hereinafter called a "preliminary
prospectus".
For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
1. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The
Company represents and warrants to the Underwriter as of the date hereof, and
as of the Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement has become effective under the 1933 Act and
no stop order suspending
2
the effectiveness of the Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for
additional information has been complied with. At the time the
Registration Statement became effective and at the Closing Time, the
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act of 1939, as amended (the "1939 Act") and the rules
and regulations of the Commission thereunder (the "1939 Act
Regulations"), and did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing (including electronic
media) by the Underwriters expressly for use in the Registration
Statement or Prospectus.
The Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the 1933 Act, complied when so filed
in all material respects with the 1933 Act Regulations and the
Prospectus delivered to each Underwriter for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and at the Closing
Time, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the
3
statements therein not misleading, in light of the circumstances in
which they were made.
(iii) No Material Adverse Change in Business. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the
financial condition, earnings, business affairs or business prospects
of the Company (a "Material Adverse Effect"), whether or not arising
in the ordinary course of business and (B) there have been no
transactions entered into by the Company, other than those in the
ordinary course of business, which are material with respect to the
Company.
(iv) Good Standing of the Company. The Company has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware and has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(v) Authorization of Agreement. This Agreement has
been duly authorized, executed and delivered by the Company.
(vi) Authorization of Other Agreements. Each of the
Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement
and this Agreement has been duly authorized and, at the Closing Time,
will have been duly executed and delivered by the Company and will
each constitute a legal, valid and binding instrument enforceable
against the Company in accordance with its terms, subject (i) to
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, (ii) as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (iii)
as to enforceability with respect to rights of indemnity thereunder,
to limitations of public policy under applicable securities laws.
(vii) Description of the Pooling and Servicing
Agreement. The description of the Pooling and Servicing Agreement in
the Prospectus conforms in all material respects with the terms
thereof. At the Closing Time, the Pooling and Servicing Agreement will
conform in all material
4
respects to the description thereof contained in the Prospectus.
(viii) Description of the Certificates. The
Certificates have been duly authorized by the Company for issuance and
sale pursuant to this Agreement and the Pooling and Servicing
Agreement (or will have been so authorized prior to the issuance of
the Certificates), and the Certificates and the Class F, Class G,
Class H, Class J, Class K, Class L, Class R-I, Class R-II and Class
R-III Certificates when duly authorized, executed, issued,
authenticated and delivered pursuant to the provisions of this
Agreement, the Certificate Purchase Agreement (the "Certificate
Purchase Agreement") of even date herewith between the Company and
MLPF&S, and the Pooling and Servicing Agreement against payment of the
consideration therefor in accordance with this Agreement and the
Certificate Purchase Agreement, will be validly issued and outstanding
and shall be entitled to the benefits of the Pooling and Servicing
Agreement, except as the enforceability thereof may be limited by the
effect of (a) bankruptcy, reorganization insolvency, moratorium or
other similar laws effecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law). The description of the
Certificates in the Prospectus conforms or will conform in all
material respects with the terms thereof and will be in substantially
the respective forms to be filed on Form 8-K within 15 days after the
Closing Time and incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(ix) Absence of Defaults and Conflicts. The Company
is not in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company is a party or by which it may be
bound, or to which any of the property or assets of the Company is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions of the
Company contemplated hereby or thereby or in the Registration
Statement and the consummation of the transactions contemplated herein
and in the Registration Statement (including the issuance and sale of
the Certificates) and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or
5
both, conflict with or constitute a breach of, or default or a
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, the Agreements and Instruments
except for such conflicts, breaches, defaults, Repayment Events or
liens, charges or encumbrances that, singly or in the aggregate, would
not result in a Material Adverse Effect, nor will such action result
in any violation of the provisions of the charter or by-laws of the
Company or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or
any of its assets or properties that, singly or in the aggregate,
would have a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or its affiliates.
(x) Absence of Labor Dispute No labor dispute with
the employees of the Company exists or, to the knowledge of the
Company, is imminent.
(xi) Absence of Proceedings. There is no action,
suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company which would
reasonably be expected to result in a Material Adverse Effect, or
which would reasonably be expected to materially and adversely affect
the properties or assets of the Company taken as a whole or the
consummation of this Agreement or the performance by the Company of
its obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company is a party or of which
any of its property or assets is the subject which are not described
in the Registration Statement, including ordinary routine litigation
incidental to the business, would not reasonably be expected to result
in a Material Adverse Effect.
(xii) Accuracy of Exhibits. There are no contracts
or documents which are required to be described in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required, except for any documents permitted to
be filed on Form 8-K within 15 days after the Closing Time.
(xiii) Possession of Intellectual Property. The
Company owns or possesses, or can acquire on reasonable terms,
adequate patents, patent rights, licenses,
6
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property"), if any, necessary to carry on the business now operated by
it, and the Company has not received any notice or is not otherwise
aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xiv) Absence of Further Requirements. No filing
with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Certificates hereunder or the
consummation of the transactions of the Company contemplated by this
Agreement, except such as may be required under the 1933 Act
Regulations, the 1939 Act Regulations or state securities or blue sky
laws.
(xv) Possession of Licenses and Permits. The Company
possesses such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to enter into, and perform its obligations under this
Agreement and to conduct the business now operated by it; the Company
is in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all
the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xvi) Tax Returns. The Company has filed all
federal, state, local and foreign tax returns that are required to be
filed or has duly requested extensions thereof and has paid all taxes
required to be paid by it and any related assessments, fines or
penalties, except for any
7
such tax, assessment, fine or penalty that is being contested in good
faith and by appropriate proceedings; and adequate charges, accruals
and reserves have been provided for in respect of all federal, state,
local and foreign taxes for all periods as to which the tax liability
of the Company has not been finally determined or remains open to
examination by applicable taxing authorities.
(xvii) Investment Company Act. The Company is not
and upon the issuance and sale of the Certificates as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act"). The Trust Fund is not required to be registered as an
"investment company" under the 1940 Act.
(xviii) Environmental Laws. Except as described in
the Registration Statement and except such matters as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
the Company is not in violation of any federal, state, local or
foreign statute, law, rule regulation, ordinance, code, policy or rule
of common law or any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance
with its requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company relating
to Hazardous Materials or Environmental Laws.
(xix) No Liens. At the time of the execution and
delivery of the Pooling and Servicing Agreement, the Company (A) will
convey to the Trustee, or cause to be conveyed to the Trustee, all of
its right, title and
8
interest in and to the Mortgage Loans, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively, "Liens") granted by or imposed upon the
Company, (B) will not have assigned to any person any of its right,
title or interest in such Mortgage Loans or in the Pooling and
Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer such Mortgage Loans to the Trustee and to
sell the Certificates to the Underwriters, and upon delivery to the
Underwriters of the Certificates pursuant hereto, each Underwriter
will have good title to the Certificates purchased by such
Underwriter, in each case free of Liens (excluding Liens granted by or
imposed upon such Underwriter by Persons other than the Company or any
Affiliate thereof).
(xx) Sale of Mortgage Loans. Under generally
accepted accounting principles ("GAAP") and for federal income tax
purposes, the Company will report the transfer of the Mortgage Loans
to the Trustee in exchange for the Certificates and the sale of the
Certificates to the Underwriters pursuant to this Agreement as a sale
of the interests in the Mortgage Loans evidenced by the Certificates.
The consideration received by the Company upon the sale of the
Certificates to the Underwriters will constitute reasonably equivalent
value and fair consideration for the Certificates. The Company will be
solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Certificates to the Underwriters. The
Company is not selling the Certificates to the Underwriters with any
intent to hinder, delay or defraud any of the creditors of the
Company.
(xxi) Ratings. At the Closing Time, the respective
classes of Certificates shall have been assigned ratings no lower than
those set forth in Schedule A hereto by the nationally recognized
statistical rating organizations identified in Schedule A hereto (the
"Rating Agencies").
(xxii) Taxes. Any taxes, fees and other governmental
charges in connection with the execution, delivery and issuance of
this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreements and the Certificates payable by the Company (other
than income taxes) have been paid or will be paid at or prior to the
Closing Time.
(b) Officer's Certificates. Any certificate signed by
any officer of the Company and delivered to the Underwriters or to counsel for
the Underwriter shall be deemed a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
9
2. Sale and Delivery to the Underwriters; Closing.
----------------------------------------------
(a) Certificates. On the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to the Underwriter, and the Underwriter
agrees to purchase from the Company, at the purchase price set forth in
Schedule A, the aggregate initial certificate balance of Certificates set forth
in Schedule A.
(b) Payment. Payment of the purchase price for, and
delivery of the Certificates shall be made at the office of Xxxxxxx Xxxx &
Xxxxxxxxx or at such other place as shall be agreed upon by the Underwriter and
the Company, at 10:00 A.M. on or about December 22, 1998 or such other time not
later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to each Underwriter for the account of such Underwriter of the
Certificates to be purchased by them. The Certificates shall be registered in
the name of Cede & Co., pursuant to the DTC Agreement and shall be made
available for examination and packaging by the Underwriters in the City of New
York not later than 10:00 A.M. on the last business day prior to the Closing
Time.
(c) Denominations; Registration. The Certificates shall
be in such denominations as the Underwriter may request in writing at least one
full business day before the Closing Time.
3. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and
Commission Requests. The Company will notify the Underwriter immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus that relates to the offering of the
Certificates shall have been filed, (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any
other order preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Certificates for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will
10
take such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing by
the Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any such order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give each
Underwriter notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or revision to either the
Basic Prospectus or to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise (other than reports to be filed pursuant to the 1934
Act), will furnish each Underwriter with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which either Underwriter or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. Upon request the
Company will deliver to the Underwriter and counsel for the Underwriter,
without charge, a signed copy of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and a conformed copy of all consents and
certificates of experts. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
the Underwriter, without charge, as many copies of each preliminary prospectus,
if any, as each the Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to the Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as the
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Certificates as contemplated
in this Agreement and in the Prospectus. If at any
11
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Certificates, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriter or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the Prospectus will not
include any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a purchaser,
or if it shall be necessary, in the opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriter such number of copies of such amendment or supplement as each such
Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriter, to qualify the Certificates for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will also supply the Underwriter with such
information as is necessary for the determination of the legality of the
Certificates for investment under the laws of such jurisdictions as the
Underwriter may request.
(g) Reporting Requirements. The Company, during the period
when the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
(h) Rating of Certificates. The Company shall take all
reasonable action necessary to enable Standard & Poor's Ratings Service, a
division of The McGraw Hill Companies, Inc., ("S&P"), and Xxxxx'x Investors
Service, Inc. ("Moody's") to provide their respective credit ratings of the
Certificates as described in the Prospectus.
(i) DTC. The Company will cooperate with the Underwriter and
use its best efforts to permit the Certificates
12
to be eligible for clearance and settlement through the facilities of DTC.
(j) Restriction on Sale of Securities. During the period
from the date hereof to the Closing Time, the Company will not, without the
prior written consent of the Underwriter, directly or indirectly, issue, sell,
offer or agree to sell, grant any option for the sale of, or otherwise dispose
of, any other mortgage-related securities of the Company or securities of the
Company that are convertible into, or exchangeable for, the Certificates or
such other securities.
4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Registration Statement (including
any schedules or exhibits and any document incorporated therein by reference)
originally filed and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to each Underwriter of this Agreement, the
Pooling and Servicing Agreement and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Certificates,
(iii) the preparation, issuance and delivery of the Certificates to the
Underwriter, including any charges of DTC in connection therewith, (iv) the
fees and disbursements of the Company's accountants and other advisors, (v) the
qualification of the Certificates under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to each Underwriter of
copies of each preliminary prospectus and of the Prospectus and any amendments
or supplements thereto, (vii) the fees and expenses of the Trustee, the Master
Servicer and the Special Servicer, including the fees and disbursements of
counsel for the Trustee, the Master Servicer and the Special Servicer in
connection with the Pooling and Servicing Agreement and the Certificates and
(viii) any fees payable in connection with the rating of the Certificates.
(b) Termination of Agreement. If this Agreement is
terminated by the Underwriter in accordance with the provisions of Section 5 or
Section 9(a)(i) hereof, the Company shall reimburse such Underwriter for all of
its out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriter.
5. Conditions of Underwriters' Obligations. The obligations
of the Underwriter hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company delivered pursuant to the provisions hereof, to
13
the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. At the Closing
Time no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) Opinion of Counsel for the Master Servicer and the
Special Servicer. At the Closing Time, the Underwriter shall have received the
favorable opinion, dated as of the Closing Time, of counsel for the Master
Servicer and the Special Servicer, in form and substance satisfactory to
counsel for the Underwriter.
(c) Opinion of Counsel for the Underwriters. At the Closing
Time, the Underwriter shall have received the favorable opinion, dated as of
the Closing Time, of counsel for the Underwriter. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the Underwriter
and certificates of public officials.
(d) Officers' Certificate of the Company. At the Closing
Time, there shall not have been, since the date hereof or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the financial condition, earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, and each Underwriter shall have received a certificate of the
President or a Vice President of the Company dated as of the Closing Time, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct in
all material respects with the same force and effect as though expressly made
at and as of the Closing Time, (iii) each has complied in all material respects
with all agreements and satisfied all conditions on its part to be performed or
satisfied in all material respects at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are pending
or, to the Company's knowledge, are contemplated by the Commission.
(e) Officers' Certificates of the Master Servicer and the
Special Servicer. At the Closing Time, there shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the financial condition,
earnings, business affairs or business prospects of the Master Servicer and its
subsidiaries considered as one enterprise, whether or not arising
14
in the ordinary course of business, and each Underwriter shall have received a
certificate of the President or a Vice President of the Master Servicer and the
Special Servicer, dated as of the Closing Time, to that effect.
(f) Accountant's Comfort Letter. At or prior to the time of
the execution of this Agreement, each Underwriter shall have received from
PriceWaterhouseCoopers, LLP ("PWC") a letter dated such date, in form and
substance satisfactory to the Underwriter, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to the Underwriter with respect to certain financial information contained in
the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At the Closing Time, each
Underwriter shall have received from PWC a letter, dated as of the Closing
Time, to the effect that it reaffirms the statements made in its letter
furnished pursuant to subsection (f) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to the
Closing Time.
(h) Maintenance of Rating. At the Closing Time, the
Certificates shall have received the ratings set forth in Schedule A and the
Company shall have delivered to each Underwriter a letter dated the Closing
Time, from each such rating agency, or other evidence satisfactory to each
Underwriter, confirming that the Certificates have such ratings.
(i) Opinion of Counsel for Trustee. At the Closing Time, the
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Trustee, in form and substance satisfactory to counsel
for the Underwriter.
(j) Opinion of Tax and ERISA Counsel. At the Closing Time,
the Underwriter shall have received a favorable opinion, dated as of the
Closing Time, of tax and ERISA counsel to the Company with respect to the
Certificates (i) regarding the qualification of each of REMIC I, REMIC II and
REMIC III (as each such term is defined in the Pooling and Servicing Agreement)
as a real estate mortgage investment conduit within the meaning of Sections
860A through 860G of the Internal Revenue Code of 1986, as amended, and (ii) to
the effect that the statements in the Basic Prospectus and the Prospectus
Supplement under the headings "MATERIAL FEDERAL INCOME TAX CONSEQUENCES" and
"ERISA CONSIDERATIONS", to the extent that they constitute matters of State of
New York or federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment in the
Certificates described therein, are correct in all material respects with
respect to those consequences or matters that are discussed therein.
(k) Opinion of Counsel for the Company. At the Closing Time,
the Underwriter shall have received the favorable
15
opinion, dated as of the Closing Time, of counsel for the Company, in form and
substance satisfactory to counsel for the Underwriter.
(l) Additional Documents. At the Closing Time, counsel for
the Underwriter shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Certificates as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Certificates as herein
contemplated shall be satisfactory in form and substance to the Underwriter and
counsel for the Underwriter.
(m) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Underwriter by notice to the
Company at any time at or prior to the Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
6. Indemnification.
---------------
(a) Indemnification of Underwriter. The Company agrees to
indemnify and hold harmless the Underwriter and each person, if any, who
controls such Underwriter, as the case may be, within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Computational Materials, ABS Term Sheets or Collateral Term Sheets
distributed by such
16
Underwriter, unless such untrue statement or alleged untrue statement
of a material fact was made in reliance upon and in conformity with
Derived Information provided by such Underwriter expressly for use in
the Computational Materials, ABS Term Sheets or Collateral Term Sheets
and the untrue statement or alleged untrue statement did not derive
from an inaccuracy in the Seller-Provided Information used in the
preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets;
(iii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(d) below)
any such settlement is effected with the written consent of the
Company; and
(iv) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
the Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information (including information provided
in electronic format) furnished to the Company by the Underwriter expressly for
use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); provided further that the Company's agreement to indemnify and
reimburse the Underwriter (or any officer or director thereof or any person
controlling such Underwriter) under this Section 6 shall not apply to any loss,
claim, damage, liability or expense arising out of or relating to claims
asserted by any person who purchased any Registered Certificates pursuant to
the Preliminary Prospectus Supplement that are the subject of such loss, claim,
damage, liability or expense, if such person did not receive a copy of the
Prospectus Supplement concurrently with or prior to the settlement of the sale
of such Registered Certificates to such person in any case where the untrue
statement or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact contained in such Preliminary
Prospectus
17
Supplement which was the basis of any such claims, was corrected in the
Prospectus Supplement.
(b) Indemnification of the Company, Directors and Officers.
The Underwriter agrees to indemnify and hold harmless the Company, its
directors and its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows (i) against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information (including information provided in
electronic format) furnished to the Company by the Underwriter expressly for
use in the Registration Statement (or amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), and (ii)
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or alleged untrue statements made in the
Computational Materials, Collateral Term Sheets or ABS Term Sheets to the
extent that such untrue statement or alleged untrue statement of a material
fact was made in reliance upon and in conformity with Derived Information
provided by the Underwriter expressly for use in the Computational Materials,
the ABS Term Sheets or the Collateral Term Sheets and the untrue statements or
alleged untrue statements did not derive from an inaccuracy in the
Seller-Provided Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets.
For purposes of this Agreement, "Computational Materials" shall have the
meaning given such term in the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co.
Incorporated and Xxxxxx Structured Asset Corporation, as made applicable to
other issuers and underwriters by the Commission in response to the request of
the Public Securities Association dated May 24, 1994 (collectively, the
"Xxxxxx/PSA Letter"), and the requirements of the No-Action Letter of February
17, 1995 issued by the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action
Letters"), but shall include only those Computational Materials that have been
prepared or delivered to prospective investors by the Underwriter. For purposes
hereof, "ABS Term Sheets" and "Collateral Term Sheets" shall have the meanings
given such terms in the PSA Letter but shall include only those ABS Term Sheets
or Collateral Term Sheets that have been prepared or delivered to prospective
investors by the Underwriter. For purposes hereof,
18
"Derived Information" means such portion, if any, of the information delivered
to the Company by such Underwriter for filing with the Commission on Form 8-K
and (i) is not contained in the Prospectus without taking into account
information incorporated therein by reference, and (ii) does not constitute
Seller-Provided Information. "Seller-Provided Information" means any computer
tape (or other information) furnished to such Underwriter by or on behalf of
the Company, including, but not limited to, any information provided by any
Mortgage Loan Seller expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by the Underwriters and, in the case of parties indemnified pursuant
to Section 6(b) above, counsel to the indemnified parties shall be selected by
the Company. An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and the expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the related indemnified party, which consent shall not be unreasonably
withheld or delayed, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body,
19
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof by such indemnified party (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party. An
indemnifying party shall not be liable under any settlement or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened in writing, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof by an indemnified party which is effected without the prior written
consent of such indemnifying party, which consent will not be unreasonably
withheld or delayed.
(d) Settlement without Consent if Failure to Reimburse.
Notwithstanding anything to the contrary contained in Section 6(c), if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(iii) effected without its written consent
if (i) such settlement is entered into more that 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 45 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
7. Contribution. If the indemnification provided for in
Section 6 hereof is due in accordance with its terms but is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and such Underwriter
on the other hand from the offering and sale of the Certificates pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriter on the
other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand
and the Underwriter on the other hand in connection with the offering and sale
of the Certificates pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering and
sale of the Certificates pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriter, in each case as set forth on Schedule A, bear to the aggregate
initial purchase price of the Certificates as set forth on Schedule A. The
relative fault of the Company on the one hand and the Underwriter on the other
hand shall be determined by reference to, among other things,
20
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission. In the
event that any expenses so paid by the indemnifying party are subsequently
determined not be required to be borne by the indemnifying party hereunder
(whether in connection with indemnification pursuant to Section 6 or
contribution pursuant to this Section 7), the party which received such payment
shall promptly refund the amount so paid to the party which made such payment.
Notwithstanding the provisions of this Section 7, each
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total purchase price for the Certificates underwritten by
the Underwriter and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Underwriter and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company. The Underwriter's obligations
to contribute pursuant to this Section 7 is in proportion to the initial
certificate balance of Certificates set forth opposite its name in Schedule A
hereto.
21
8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Certificates
to the Underwriter.
9. Termination of Agreement.
------------------------
(a) Termination; General. The Underwriter may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the financial condition, earnings, business
affairs or business prospects of the Company or of the Mortgage Loan Seller,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriter,
impracticable to market the Certificates or to enforce contracts for the sale
of the Certificates, or (iii) if trading in any securities of the Company or of
the Mortgage Loan Seller has been suspended or limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or on the Nasdaq National Market has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to
Section 9(a), such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
10. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given upon receipt if
mailed, delivered by courier or transmitted by any standard form of
telecommunication. Notices to Xxxxxxx Xxxxx shall be directed to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, World Financial Center, Xxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Real Estate Investment
22
Banking; and notices to the Company shall be directed to Xxxxxxx Xxxxx Mortgage
Investors, Inc., World Financial Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Secretary, with a copy to the Treasurer, or, as to any party, such
other address as may hereafter be furnished by such party to the others in
writing.
11. Parties. This Agreement shall each inure to the benefit
of and be binding upon the Underwriter, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriter, the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriter, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Certificates from the Underwriter shall be
deemed to be a successor by reason merely of such purchase.
12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
13. Effect of Headings. The Section and other headings
herein and in the Table of Contents are for convenience of reference only and
shall not affect the construction hereof.
14. Miscellaneous. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
23
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
---------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Authorized Signatory
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Authorized Signatory
24
SCHEDULE A
----------
UNDERWRITING AGREEMENT, DATED DECEMBER 22, 1998
CUT-OFF DATE: December 1, 1998
CERTIFICATES: Commercial Mortgage Acceptance Corp.,
Mortgage Pass-Through
Certificates, Series 1998-C3
Initial
Certificate
Balance of Initial Pass- Purchase Rating
Class Designation Class Through Rate Price(1) (2)
----------------- ---------- ------------- -------- ------
A-1 $129,870,000 5.65% 100.48% Aaa/AAA
A-2 75,490,000 5.87% 100.47% Aaa/AAA
A-3 243,122,000 5.88% 100.47% Aaa/AAA
B 33,516,000 (3) 100.48% Aa2/AA
C 35,112,000 (3) 100.50% A2/A
D 38,305,000 (3) 95.23% Baa2/BBB
E 7,980,000 (3) 88.42% Baa3/BBB-
IO (4) (4) 6.30% Aaa/AAAr
(1) Expressed as a percentage of the initial aggregate Certificate Balance
of the relevant Class of Certificates to be purchased. The purchase
price for each Class of the Certificates will include accrued interest
at the initial Pass-Through Rate therefor on the aggregate stated
amount thereof to be purchased from the Cut-Off Date to but not
including the Closing Date.
(2) By each of Xxxxx'x and Standard & Poor's Rating Services, respectively.
(3) The Pass-Through Rates applicable to the Class B, Class C, Class D and
Class E Certificates will equal the Weighted Average Net Mortgage Rate
minus 0.92%, 0.54%, 0.00% and 0.00%, respectively.
(4) The Class IO Certificates will not have a principal balance nor will
they entitle the holders thereof to receive distributions of
principal, but will entitle such holders to receive payments of
interest equal to the aggregate of the interest accrued on the
notional amount of each of its Components. The initial notional amount
is $638,408,605.
