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MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
and similar Series of which
AMRESCO Commercial Mortgage Funding I Corporation is Seller
Underwriting Agreement
June 30, 1997
Xxxxxxx, Xxxxx & Co.,
as representative (the "Representative")
of the several Underwriters named in
the respective Pricing Agreements
hereinafter described
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
From time to time on one or more occasions AMRESCO Commercial Mortgage
Funding I Corporation, a Delaware corporation (the "Seller"), proposes (a) to
enter into a pooling and servicing agreement (each, a "Pooling and Servicing
Agreement"), in each case with a bank or trust company, as trustee (the
"Trustee"), a Master Servicer and, if applicable, a Special Servicer, and (b)
to enter into a Pricing Agreement (each, a "Pricing Agreement") in the form of
Annex A hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and therein,
to direct the Trustee pursuant to the applicable Pooling and Servicing
Agreement to issue and sell to the firms named in the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the securities specified therein) certain of its Mortgage
Pass-Through Certificates specified in such Pricing Agreement (the "Designated
Securities"). At their date of issuance, each issuance of Designated
Securities will represent beneficial ownership interests in one or more trust
funds (each, a "Trust Fund") consisting of Mortgage Loans (as defined in the
related Pooling and Servicing Agreement) and other assets. Capitalized terms
used but not defined herein shall have the meanings given to them in the
related Pooling and Servicing Agreement or, if not defined therein, in the
related Pricing Agreement. The terms and conditions of any particular issuance
of Designated Securities shall be as specified in the Pricing Agreement
relating thereto and pursuant to the related Pooling and Servicing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Designated Securities, for whom Xxxxxxx,
Xxxxx & Co. will act as the Representative. This Underwriting Agreement shall
not be construed as an obligation of the Seller to sell, or as an obligation of
any of the Underwriters to purchase, any of the Designated Securities.
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The obligation of the Seller to issue and sell or cause to be issued and sold
any of the Designated Securities and the obligation of any of the Underwriters
to purchase any of the Designated Securities shall be evidenced by the Pricing
Agreement with respect to such Designated Securities. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated Securities, the
initial public offering price or prices of such Designated Securities (if a
fixed price offering) , the purchase price to the Underwriters of such
Designated Securities, the names of the Underwriters of such Designated
Securities, the name of the Trustee with respect to such Designated Securities
and the principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and of payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the Pooling and Servicing
Agreement and the registration statement and prospectus with respect thereto)
the terms of such Designated Securities. The Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts) and may evidenced by
an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligation of the Underwriters under this Agreement and under each Pricing
Agreement shall be several and not joint.
2. Each of the Seller and AMRESCO CAPITAL CORPORATION
("AMRESCO") represents and warrants to, and agrees with, each of the
Underwriters that, with respect to each issue of Designated Securities:
(a) The Seller meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"); a registration
statement (File No. 333-19591) on such form in respect of the Designated
Securities, together with one or more amendments thereto, has been filed
with the Securities and Exchange Commission (the "Commission") in the
form heretofore delivered or to be delivered to the Representative and,
exhibits to such registration statement and all documents incorporated
by reference in the prospectus contained therein, to the Representative
for each of the other Underwriters; such registration statement in such
form has been declared effective by the Commission; no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission; and such registration statement meets the
requirements set forth in subsection (a)(1)(x) of, and complies in all
material respects with, Rule 415 under the Act (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act being hereinafter
called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and all documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective, each as amended at the time such became
effective, being hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Designated Securities, in the
form in which it has most recently been filed, or mailed for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include all documents incorporated by reference therein as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; and
any reference to the "Prospectus Supplement" shall be deemed to refer to
the Prospectus as amended or supplemented in relation to the Designated
Securities in the form in which it is
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first filed, or mailed for filing, with the Commission pursuant to Rule
424 under the Act following pricing of the Designated Securities,
including any documents incorporated by reference therein as of the date
of such filing or mailing);
(b) The Registration Statement and Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any supplement thereto, 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 statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Seller by an Underwriter of
Designated Securities through the Representative expressly for use in
the Prospectus Supplement;
(c) Each of the Seller and AMRESCO has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the State of its organization and has been duly qualified or
registered as a foreign corporation for the transaction of business and
is in good standing under the laws of all jurisdictions in which it owns
or leases property of a nature or transacts business of a type that
would require such qualifications or in which the failure to so qualify
or be in good standing could, individually or in the aggregate, have a
material adverse effect on the business, condition or properties of the
Seller or AMRESCO, as applicable;
(d) The Seller has all requisite power and authority
(corporate and other) and all requisite authorizations, approvals,
orders, licenses, certificates and permits of and from all governmental
or regulatory officials and bodies to own its properties, to conduct its
business as described in the Registration Statement and the Prospectus
and to execute, deliver and perform this Agreement, except such as may
be required under state securities or Blue Sky laws in connection with
the purchase and distribution by the Underwriters of the Designated
Securities; all such authorizations, approvals, orders, licenses,
certificates and permits are in full force and effect and contain no
unduly burdensome provisions; and, except as otherwise set forth or
contemplated in the Registration Statement or the Prospectus, there are
no legal or governmental proceedings pending or, to the best of the
Seller's knowledge, threatened, that would result in a material
modification, suspension or revocation thereof;
(e) AMRESCO has all requisite power and authority (corporate
and other) and all requisite authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental or
regulatory officials and bodies to own its properties, to conduct its
business and to execute, deliver and perform its obligations under
Section 8 of this Agreement; all such authorizations, approvals, orders,
licenses, certificates and permits are in full force and effect and
contain no unduly burdensome provisions; and there are no legal or
governmental proceedings pending, or, to the best of XXXXXXX's
knowledge, threatened, that would result in a material modification,
suspension or revocation thereof;
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(f) This Agreement has been duly authorized, executed and
delivered by the Seller and XXXXXXX;
(g) At the Time of Delivery (as defined in Section 4 hereof),
the related Pooling and Servicing Agreement will have been duly
authorized, executed and delivered by the Seller and, assuming due
authorization, execution and delivery by the other parties thereto, will
constitute a valid and legally binding obligation of the Seller,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity;
(h) When the Designated Securities are issued, executed,
authenticated and delivered pursuant to this Agreement, the Pricing
Agreement and the related Pooling and Servicing Agreement, the
Designated Securities will have been duly authorized, executed,
authenticated, issued and delivered and will be entitled to the benefits
of the related Pooling and Servicing Agreement; and the Designated
Securities and the related Pooling and Servicing Agreement will conform
to the descriptions thereof in the Prospectus Supplement;
(i) The issue and sale of the Designated Securities, the
compliance by the Seller with all of the provisions of this Agreement
and the Pricing Agreement and the related Pooling and Servicing
Agreement, and the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Seller is a party or by which the Seller is
bound or to which any of the property or assets of the Seller is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or the By-Laws of the Seller or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Seller, or any of its
properties; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities or
the consummation by the Seller of the other transactions contemplated by
this Agreement or the Pricing Agreement or the related Pooling and
Servicing Agreement, except such as have been obtained under the Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(j) Compliance by XXXXXXX with Section 8 hereof will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which
AMRESCO is a party or by which AMRESCO is bound or to which any of the
property or assets of AMRESCO is subject, nor will such action result in
any violation of the provisions of the Articles of Incorporation, or the
By-Laws of AMRESCO or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over
AMRESCO, or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is
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required for the entry by XXXXXXX into this Agreement or the performance
by XXXXXXX of its obligation under Section 8 of this Agreement, except
such as have already been obtained;
(k) Other than as set forth or contemplated in the Prospectus
Supplement, there are no legal or governmental proceedings pending and
at the Time of Delivery there will be no legal or governmental
proceedings pending to which the Seller is a party or of which any
property of the Seller is the subject which, if determined adversely to
the Seller, would individually or in the aggregate have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, properties or prospects of the Seller, and to the
best of the Seller's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) Other than as set forth or contemplated in the Prospectus
Supplement, there are no legal or governmental proceedings pending and
at the Time of Delivery there will be no legal or governmental
proceedings pending to which AMRESCO is a party or of which any property
of AMRESCO is the subject which, if determined adversely to AMRESCO,
would individually or in the aggregate have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
properties or prospects of AMRESCO, and to the best of XXXXXXX's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(m) The Seller will at the Time of Delivery own the Mortgage
Loans to be sold and delivered to the Trustee under the related Pooling
and Servicing Agreement, free and clear of any lien, mortgage, pledge,
charge, security interest or other encumbrance; and, at the Time of
Delivery, the Seller will have full power and authority to sell and
deliver the Mortgage Loans to the Trustee under the related Pooling and
Servicing Agreement and at the Time of Delivery will have duly
authorized such assignment and delivery to the Trustee by all necessary
action;
(n) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this
Agreement, the Pricing Agreement, the related Pooling and Servicing
Agreement and the Designated Securities will have been paid at or prior
to the Time of Delivery;
(o) At the Time of Delivery, the Mortgage Loans will have been
duly and validly assigned and delivered by the Seller to the Trustee
under the related Pooling and Servicing Agreement;
(p) The Trust Fund created by the related Pooling and
Servicing Agreement will not at the Time of Delivery be required to be
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
(q) The Seller is not and at the Time of Delivery will not be
an "investment company", as such term is defined in the Investment
Company Act.
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3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representative of the
release of the Designated Securities, the several Underwriters propose to offer
the Designated Securities for sale upon the terms and conditions set forth in
the Prospectus Supplement.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive or book-entry
form as indicated in the Pricing Agreement, and in such authorized
denominations and registered in such names as the Representative may request
upon at least forty-eight hours' prior notice to the Seller, shall be delivered
on behalf of the Trustee to the Representative for the account of such
Underwriter, against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of immediately available funds to the
Seller, or in such other manner as may be specified in such Pricing Agreement,
all at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representative and the Seller may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Designated Securities.
5. The Seller agrees with each of the Underwriters of any
Designated Securities:
(a) To make no further amendment or any supplement to the
Registration Statement, the Prospectus or the Prospectus Supplement
after the date of the Pricing Agreement relating to such Designated
Securities and prior to the Time of Delivery for such Designated
Securities which shall be disapproved by the Representative promptly
after reasonable notice thereof; to advise the Representative promptly
of any such amendment or supplement after such Time of Delivery and
furnish the Representative with copies thereof; for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Designated Securities, to advise the Representative,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or become
effective or any supplement to the Prospectus or any amended Prospectus
has been filed or mailed for filing, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Designated Securities, of the suspension
of the qualification of the Designated Securities for offering or sale
in any jurisdiction, of the initiation or threatened initiation of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Designated
Securities or suspending any such qualification, to use promptly its
best efforts to obtain the withdrawal of any such order;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify such Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representative may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith neither the Trust Fund issuing such Designated Securities nor
the Seller shall be required to qualify to do business or to file a
general consent to service of process in any jurisdiction;
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(c) To cause any Computational Materials and any Structural
Term Sheets (each as defined below) with respect to an issue of
Designated Securities that are delivered by any of the Underwriters to
the Seller to be filed with the Commission on a Form 8-K 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 Seller by any Underwriter prior
to 2 p.m. and (ii) the date on which the related Pricing Agreement is
executed and delivered. If any Collateral Term Sheet (as defined below)
is used by any of the Underwriters, the Seller will cause each such
Collateral Term Sheet with respect to an issue of Designated Securities
that is delivered by the Underwriters to the Seller to be filed with the
Commission on a Form 8-K 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 Seller by any
Underwriter prior to 2 p.m. "Computational Materials" shall have the
meaning assigned to such term in the no-action letter dated May 20, 1994
issued by the Division of Corporation Finance of the Commission to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co.
Incorporated and Xxxxxx Structured Asset Corporation and the related no-
action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association, the
filing of which material is a condition of the relief granted in such
letter. "Structural Term Sheets" shall have the meaning assigned to
such term in 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"), the filing of which material
is a condition of the relief granted in such letter. "Collateral Term
Sheets" shall have the meaning assigned to such term in the PSA Letter,
the filing of which material is a condition of the relief granted in
such letter; and
(d) To furnish the Underwriters with copies of the Prospectus
and the Prospectus Supplement in such quantities as the Representative
may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Designated Securities and if at any such time any event
shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify the
Representative and upon its request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representative may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance.
6. The Seller covenants and agrees with the several
Underwriters of any designated Securities that the Seller will pay or cause to
be paid the following: (i) the fees, disbursements and expenses of counsel and
accountants for the Seller in connection with the registration of such
Designated Securities under the Act and all other expenses in connection with
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the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivery of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement Among
Underwriters, this Agreement, any Pricing Agreement, any Pooling and Servicing
Agreement, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of such Designated
Securities; (iii) all expenses in connection with the qualification of such
Designated Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment
Memoranda; (iv) any fees charged by securities rating services for rating such
Designated Securities; (v) the cost of preparing such Designated Securities;
(vi) the fees and expenses of any Trustee and of any agent of such Trustee and
the fees and disbursements of counsel for the Trustee in connection with the
related Pooling and Servicing Agreement and such Designated Securities; (vii)
the fees and expenses of counsel for Underwriters; (viii) the out-of-pocket
costs of the Representative; and (ix) all other costs and expenses incident to
the performance of the Seller's obligations hereunder which are not otherwise
specifically provided for in this Section.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representative, to the condition
that all representations and warranties and other statements of the Seller
herein are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that the Seller shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and
all requests for additional information from the Seller on the part of
the Commission shall have been complied with to the Representative's
reasonable satisfaction;
(b) The related Pooling and Servicing Agreement and all of the
other agreements identified in such Pricing Agreement as "Related
Agreements" shall have been duly entered into by all of the respective
parties;
(c) Counsel for the Underwriters shall have furnished to the
Representative such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the related Pooling and
Servicing Agreement, the Designated Securities, the Registration
Statement, the Prospectus Supplement and other related matters as the
Representative may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(d) Counsel for the Seller and AMRESCO satisfactory to the
Representative shall have furnished to the Representative their written
opinion (or, in the case of clause (ix) below, their letter), dated the
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representative, to the effect that:
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(i) Each of the Seller and AMRESCO has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of its organization;
(ii) The Seller has all requisite corporate power to own
its properties, to conduct its business as described in the
Registration Statement, the Prospectus and the Prospectus
Supplement and to execute, deliver and perform this Agreement,
the Pricing Agreement, the related Pooling and Servicing
Agreement and each of the Related Agreements to which the Seller
is a party;
(iii) AMRESCO has all requisite corporate power to own
its properties, to conduct its business and to execute, deliver
and perform its obligations under Section 8 of this Agreement;
(iv) To the best of such counsel's knowledge and other
than as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending to which the Seller is
a party or of which any property of the Seller is the subject
which, if determined adversely to the Seller, would individually
or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
properties or prospects of the Seller and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(v) To the best of such counsel's knowledge, there are
no legal or governmental proceedings pending to which XXXXXXX is
a party or of which any property of XXXXXXX is the subject which,
if determined adversely to AMRESCO, would individually or in the
aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, properties
or prospects of AMRESCO and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by each of the Seller and XXXXXXX;
(vii) The related Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Seller and
constitutes a legal, valid and binding obligation of the Seller,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and other similar laws affecting
creditors' rights generally and to general principles of equity
(whether considered in a proceeding in equity or at law);
(viii) The related Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended, and the Trust Fund created thereunder is not required
to be registered under the Investment Company Act;
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(ix) The Designated Securities, when duly authorized,
executed, authenticated, issued and delivered by the Trustee in
accordance with the related Pooling and Servicing Agreement, will
be validly issued and outstanding and entitled to the benefits of
the related Pooling and Servicing Agreement; and the statements
set forth under the heading "Description of the Certificates" (or
similar heading) in the Prospectus Supplement, insofar as such
statements purport to summarize certain provisions of the
Designated Securities and the related Pooling and Servicing
Agreement, provide a fair summary of such provisions;
(x) The issue and sale of the Designated Securities and
the compliance by the Seller with all of the provisions of this
Agreement, the Pricing Agreement, the Designated Securities and
the related Pooling and Servicing Agreement, and the consummation
of the transactions herein and therein contemplated, do not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Seller
is a party, nor do such actions result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws of
the Seller or any state or federal statute applicable to the
Seller or any order, rule or regulation known to such counsel of
any state or federal court or governmental agency or body having
jurisdiction over the Seller or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated
Securities or the consummation by the Seller of the other
transactions contemplated by this Agreement or the Pricing
Agreement with respect to the Designated Securities, the
Designated Securities and the related Pooling and Servicing
Agreement, except (A) such as have been obtained under the Act,
(B) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities, real
estate syndication or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters and (C) such recordations or filings as may be
required or contemplated by the related Pooling and Servicing
Agreement;
(xi) The compliance by AMRESCO with Section 8 of this
Agreement does not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument known to such counsel to which
AMRESCO is a party, nor do such actions result in any violation
of the provisions of the Certificate of Incorporation or the By-
Laws of AMRESCO or any state or federal statute applicable to
AMRESCO or any order, rule or regulation known to such counsel of
any state or federal court or governmental agency or body having
jurisdiction over AMRESCO or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or
body is required for entry by AMRESCO into this Agreement or the
performance by AMRESCO of its obligations under Article 8 of this
Agreement, except such as already have been obtained;
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(xii) The Registration Statement and the Prospectus, as
supplemented by the Prospectus Supplement and any further
amendments and supplements thereto made by the Seller prior to
the Time of Delivery for the Designated Securities (other than
the financial statements, schedules and other financial and
statistical data therein, as to which such counsel need express
no opinion) as of the date it became effective, as of the date of
the Prospectus Supplement or as of the date of such later
amendment or supplement, as the case may be, appeared on their
face to be appropriately responsive in all material respects to
the requirements of the Act and the rules and regulations
thereunder; on the basis of such counsel's participation in the
preparation of the Registration Statement and the Prospectus (and
any further amendment or supplement thereto made by the Seller
prior to the Time of Delivery) and in conferences with
representatives of the Seller, the Seller's independent public
accountants and the Underwriters at which the contents of the
Registration Statement and the Prospectus (and any such further
amendment or supplement thereto) were discussed and without
passing upon, assuring responsibility for or making any
independent check or verification of the factual accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (or any such further
amendment or supplement thereto) (other than as set forth in
clause (xiv) of this Section 7(d)), nothing has come to the
attention of such counsel which causes them to believe that, as
of the effective date of the Registration Statement, the
Registration Statement (or, as of the date thereof, any further
amendment thereto) (other than the financial statements,
schedules and other financial and statistical data therein, as to
which such counsel need express no opinion) 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, as of the date of the Prospectus
Supplement or as of the Time of Delivery, the Prospectus (or any
such further amendment or supplement thereto) (other than the
financial statements, schedules and other financial and
statistical data therein, as to which such counsel need express
no opinion) 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; and
such counsel do not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are
not filed or described as required;
(xiii) The Seller is not required to register as an
"investment company" under, and as such term is defined in, the
Investment Company Act; and
(xiv) The statements set forth in the Prospectus
Supplement under the heading "ERISA Considerations", "Federal
Income Tax Consequences", "Certain Legal Affects of the Mortgage
Loans" and "Legal Investment" (insofar as they relate
specifically to the purchase, ownership and disposition of the
Designated Securities), to the extent that they constitute
matters of law or legal conclusions with respect to
- 11 -
12
the federal law of the United States, have been prepared or
reviewed by such counsel and provide a fair summary of such law
or conclusions;
In rendering their opinion, such counsel may rely, to the extent deemed proper
and as stated therein, as to matters of fact on certificates of responsible
officers of the Seller and the Trustee and public officials;
(e) Counsel for the Master Servicer satisfactory to the
Representative shall have furnished to the Representative their written
opinion satisfactory in form and substance to the Representative and its
special counsel;
(f) Counsel for the Special Servicer satisfactory to the
Representative shall have furnished to the Representative their written
opinion satisfactory in form and substance to the Representative and its
special counsel;
(g) Counsel for the Trustee satisfactory to the Representative
shall have furnished to the Representative their written opinion
satisfactory in form and substance to the Representative and its special
counsel;
(h) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
the independent accountants of the Seller or other accountants
acceptable to the Representative shall have furnished to the
Representative a letter or letters, dated the date of the Pricing
Agreement, and a letter or letters, dated such Time of Delivery,
respectively, containing statements and information of the type
customarily included in accountants' "comfort letters" and "agreed upon
procedures letters" with respect to certain financial information
contained in the Registration Statement, the Prospectus and the
Prospectus Supplement, including, without limitation, Computational
Materials, Structural Term Sheet and Collateral Term Sheets, in each
case as to such matters as the Representative may reasonably request and
in form and substance satisfactory to the Representative;
(i) Subsequent to the date of the Pricing Agreement relating
to the Designated Securities, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iii) the outbreak or
escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war, if the effect of
any such event specified in this clause (iii) in the judgment of the
Representative makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented;
(j) Each of the Seller and XXXXXXX shall have furnished or
caused to be furnished to the Representative at the Time of Delivery for
the Designated Securities certificates of its officers satisfactory to
the Representative as to the accuracy in all material respects of its
representations and warranties herein at and as of such Time of
Delivery, as
- 12 -
13
to the performance of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in
Section 7(a) above and as to such other matters as the Representative
may reasonably request;
(k) The Master Servicer shall have furnished to the
Representative a certificate signed by one or more of the officers
satisfactory to the Representative, dated the Time of Delivery, to the
effect that the representations and warranties of the Servicer or Master
Servicer, as applicable, in the Pooling and Servicing Agreement are true
and correct in all material respects on and as of the Time of Delivery
with the same effect as if made at the Time of Delivery;
(l) The Special Servicer shall have furnished to the
Representative a certificate signed by one or more of its officers
satisfactory to the Representative, dated the Time of Delivery, to the
effect that the representations and warranties of the Special Servicer
in the Pooling and Servicing Agreement are true and correct in all
material respects on and as of the Time of Delivery with the same effect
as if made at the Time of Delivery;
(m) The Representative shall have received evidence
satisfactory to it that the Designated Securities are rated in the
rating category or categories specified in the Pricing Agreement by the
rating agency or agencies specified in the Pricing Agreement;
(n) XXXXXXX shall have furnished to the Representative a
certificate signed by one or more of its officers satisfactory to the
Representative, dated the Time of Delivery, to the effect that the
representations and warranties made by AMRESCO to the Seller in the
applicable Mortgage Loan Purchase Agreement are true and correct in all
material respect on and as of the Time of Delivery with the same effect
as if made at the Time of Delivery;
(o) Xxxxxxx Xxxxx Mortgage Company ("GSMC") shall have
furnished to the Representative a certificate signed by one or more of
its officers satisfactory to the Representative, dated the Time of
Delivery, to the effect that the representations and warranties made by
GSMC to the Seller in the applicable Mortgage Loan Purchase Agreement
are true and correct in all material respects on and as of the Time of
Delivery with the same effect as if made at the Time of Delivery;
(p) Any additional conditions specified in the related Pricing
Agreement; and
(q) All opinions (including reliance letters addressed to and
delivered to the rating agencies), certificates and other documents
incident to, and all proceedings in connection with the transactions
contemplated by, this Agreement, the Pricing Agreement and the related
Pooling and Servicing Agreement shall be satisfactory in form and
substance to the Representative and its special counsel. The
Representative and its special counsel shall have received copies of all
documents and other information as they may reasonably request, in form
and substance satisfactory to the Representative and its special
counsel, with respect to such transactions and the taking of all
proceedings in connection therewith.
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14
With respect to any issue of Designated Securities, for purposes of subsections
(b), (c), (d), (g), (k), (1) and (o) of this Section, the terms "Trustee" and
"Pooling and Servicing Agreement" shall be deemed to refer to the Pooling and
Servicing Agreement specified in the Pricing Agreement with respect to such
Designated Securities. All opinions of counsel contemplated by this Section
shall be addressed to the Underwriters. All closing items delivered to the
Representative shall be delivered in sufficient quantity for all of the
Underwriters.
8. (a) Each of the Seller and AMRESCO will jointly and
severally indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented or any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating
or defending any such action or claim; provided, however, that the
Seller and AMRESCO shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any such document in reliance upon and in
conformity with written information furnished to the Seller by any
Underwriter of Designated Securities through the Representative
expressly for use in the Prospectus Supplement.
(b) Each Underwriter will indemnify and hold harmless the
Seller and AMRESCO against any losses, claims, damages or liabilities to
which the Seller and AMRESCO may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented or any
other prospectus relating to the Designated Securities or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any such document in reliance upon and in conformity with
written information furnished to the Seller by such Underwriter through
the Representative expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any
- 14 -
15
indemnified party otherwise than under such subsection. In case any
such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of the
indemnifying party's 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 such subsection 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 next
preceding sentence, (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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Seller of the Designated Securities on the one hand and the
Underwriters of the Designated Securities on the other from the offering
of the Designated Securities to which such loss, claim, damage or
liability (or actions in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as it is appropriate to reflect not
only such relative benefits but also the relative fault of the Seller of
the Designated Securities on the one hand and the Underwriters of such
Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Seller of the
Designated Securities on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Seller
bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates
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16
to information supplied by the Seller on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Seller, AMRESCO and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by such
Underwriter for the Designated Securities underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Seller and AMRESCO under this
Section 8 shall be in addition to any liability which the Seller and
AMRESCO may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within
the meaning of the Act. The obligations of each Underwriter under this
Section 8 shall be in addition to any liability which each Underwriter
may otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls the Seller and AMRESCO within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation
to purchase such of the Designated Securities as it has agreed to
purchase under the Pricing Agreement relating to such Designated
Securities, the Representative may in its discretion arrange for the
Representative or another or other parties to purchase such Designated
Securities on terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representative does not arrange for
the purchase of such Designated Securities, then the Seller shall be
entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representative to
purchase such Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representative notifies the
Seller that it has so arranged for the purchase of such Designated
Securities, or the Seller notifies the Representative that it has so
arranged for the purchase of such Designated Securities, the
Representative or the Seller shall have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than
seven days, in order to effect whatever changes may be necessary in the
Registration Statement or the Prospectus as amended or supplemented, or
in any other documents or arrangements, and the Seller agrees to file
promptly any amendments or supplements to the
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17
Registration Statement or the Prospectus which in the opinion of the
Representative may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party
to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements made by the
Representative and the Seller for the purchase, of the Designated
Securities of a defaulting Underwriter or Underwriters as provided in
subsection (a) above, the aggregate principal amount of the Designated
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Designated Securities, then the Seller
shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of the Designated Securities which such
Underwriter agreed to purchase under the Pricing Agreement relating to
the Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the
principal amount of the Designated Securities which such Underwriter
agreed to purchase under such Pricing Agreement) of the Designated
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made, but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements made by the
Representative and the Seller for the purchase of the Designated
Securities of a defaulting Underwriter or Underwriters as provided in
subsection (a) above, the aggregate principal amount of the Designated
Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Designated Securities, as referred to
in subsection (b) above, or if the Seller shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters
to purchase the Designated Securities of a defaulting Underwriter or
Underwriters, then the related Pricing Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Seller, except for the expenses to be borne by the
Seller and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof, but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Seller and the several Underwriters, as
set forth in this Agreement and/or any Pricing Agreement or made by or on
behalf of any of them, respectively, pursuant to this Agreement and/or any
Pricing Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made in connection
with the issuance of Designated Securities by or on behalf of any Underwriter
or any controlling person of any Underwriter, or the Seller, or any officer or
director or controlling person of the Seller and shall survive delivery of and
payment for the Designated Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, or if for any reason Designated Securities are not delivered
by, or on behalf of, the Trustee as provided herein, the Seller shall not be
under any liability hereunder to any Underwriter with respect to the Designated
Securities covered by such Pricing Agreement except as provided in Section 6
and Section 8 hereof with respect to a non-defaulting Underwriter.
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12. In all dealings hereunder, the Representative of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representative.
All statements, requests, notices and agreements hereunder shall
be in writing or by telegram if promptly confirmed in writing, and shall be
sufficient in all respects, if delivered or sent by registered mail, if to the
Underwriters, to the address of the representative set forth above; if to the
Seller, to the address of the Seller set forth in the Registration Statement,
Attention: President; if to the Trustee, to the address of the Trustee set
forth in the related Pooling and Servicing Agreement, with a copy to the
Seller.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters of the related
Designated Securities, the Seller, AMRESCO and, to the extent provided in
Section 8 and Section 10 hereof, the officers and directors of the Seller,
XXXXXXX and each person who controls the Seller, AMRESCO or any Underwriter,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign merely by reason of
such purchase and no such purchaser shall be deemed a third party beneficiary
of this Agreement.
14. Time shall be of the essence of each Pricing Agreement.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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19
If the foregoing is in accordance with your understanding of our
agreement, lease sign and return to the undersigned two counterparts hereof,
whereupon this letter and our acceptance shall represent a binding agreement
between the Seller and each of the several underwriters.
Very truly yours,
AMRESCO COMMERCIAL MORTGAGE FUNDING I
CORPORATION
By:
--------------------------------
Name:
Title:
AMRESCO CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
----------------------------
Xxxxxxx, Xxxxx & Co.
as the Representative
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20
ANNEX A
AMRESCO Commercial Mortgage Funding I Corporation
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1997-C1
Pricing Agreement
(to Underwriting Agreement dated June 30, 1997 between
AMRESCO Commercial Mortgage Funding I Corporation, AMRESCO, Inc. and Xxxxxxx,
Sachs & Co.,
as the Representative)
Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
June 30, 1997
Ladies and Gentlemen:
This letter, when countersigned by you, will confirm that
Xxxxxxx, Xxxxx & Co. (the "Underwriter") has agreed, subject to the terms and
provisions herein and of the captioned Underwriting Agreement (the
"Underwriting Agreement"), to purchase from the undersigned such Classes of the
captioned Series 1997-C1 Certificates (the "Certificates") as are specified in
Section 2(a) hereof to (the "Designated Securities"). Each of the provisions
of the Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same extent
as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Agreement. This letter supplements and
modifies the Underwriting Agreement solely as it relates to the purchase and
sale of the Designated Securities described below. Capitalized terms used and
not defined herein have the meanings given them in the Underwriting Agreement.
Section 1. The Mortgage Pool: The Certificates shall evidence
the entire beneficial ownership interest in a mortgage pool (the "Mortgage
Pool") of commercial mortgage loans (the "Mortgage Loans") originated by the
originators specified in the Prospectus Supplement having the following
characteristics as of June 1, 1997 (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool:
$480,085,034 aggregate principal balance as of the Cut-off Date, subject
to an upward or downward variance of up to 5 %, the precise aggregate
principal balance to be determined by the Seller.
(b) The Mortgage Loans shall have such other characteristics
as described in the Prospectus Supplement.
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21
Section 2. The Designated Securities: The Designated
Securities shall be issued as follows:
(a) Classes: The Designated Securities shall be issued with the
following Class designations, pass-through rates and initial principal balances
(each, an "Initial Certificate Principal Amount"), subject in the aggregate to
the variance referred to in Section l (a) and, as to any particular Class, to
an upward or downward variance of up to 5%:
Class Initial Certificate
Principal Pass-Through Class Purchase Price
Amount Rate Percentage
--------------------- ------------------------------ ---------------------- ---------------------------
Class A1 $147,300,000 6.73% 99.52%
Class A2 $40,000,000 7.18% 100.98%
Class A3 $141,558,000 7.19% 100.95%
Class B $ 24,004,000 7.24% (1) 101.02%
Class C $ 12,002,000 7.27% (1) 100.95%
Class D $21,604,000 7.32% (1) 100.95%
Class E $26,405,000 7.44% (1) 100.97%
Class F $ 9,601,000 7.64% (1) 100.52%
(1) Subject to a cap equal to the weighted average of the Remittance Rates
in effect from time to time on the Mortgage Loans.
(a) Interests in the Designated Securities shall be held by
investors through the book-entry facilities of the Depository Trust
Company or in definitive form, as provided in the Prospectus Supplement.
(b) The Designated Securities shall have such other
characteristics as described in the Prospectus Supplement.
Section 3. Purchase Price: The purchase price for each Class
of the Designated Securities shall be the Class Purchase Price Percentage
therefor (as set forth in Section 2(a) above) of the Initial Certificate
Principal Amount thereof plus accrued interest at a per annum rate equal to the
respective pass-through rate from and including June 9, 1997 up to, but not
including, the Time of Delivery.
Section 4. Delivery of Securities: Delivery of the Designated
Securities shall be made at the offices of Xxxxxxx & Xxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, on July 8, 1997 or at such other place and time and
date as the Representative and the Seller may agree upon in writing, such time
and date being herein called the "Time of Delivery" for the Designated
Securities.
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22
Section 5. Required Ratings: The Designated Securities shall
have received ratings of at least "AAA", "AAA", "AAA", "AA", "A+", "A", "BBB",
and "BBB-" from Standard & Poor's Ratings Group and "AAA", "AAA", "AAA", "AA+",
"AA", "A", "BBB" and "BBB-" from Fitch Investors Service, L.P.
Section 6. Tax Treatment: Three separate "real estate
mortgage investment conduit" (REMIC) elections will be made with respect to the
Trust Fund for U.S. federal income tax purposes.
Section 7. Additional Closing Conditions:
(i) Counsel for the Seller shall have furnished to the
Underwriter their written tax opinion satisfactory in form and substance to the
Representative and its Special Counsel; and
(ii) The conditions set forth in Section 7 of the Certificate
Purchase Agreement shall have been satisfied.
Section 8. Related Agreements:
(i) The Mortgage Loan Purchase Agreement dated June 30, 1997
between the Seller and AMRESCO CAPITAL CORPORATION;
(ii) The Mortgage Loan Purchase Agreement dated June 30, 1997
between the Seller and Xxxxxxx Xxxxx Mortgage Company, L.P.; and
(iii) The Guaranty dated as of July 2, 1997 from AMRESCO INC. in
favor of the Underwriter.
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23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriters and the Seller.
Very truly yours,
AMRESCO COMMERCIAL MORTGAGE FUNDING I
CORPORATION
By:
--------------------------------
Name:
Title:
AMRESCO CAPITAL CORPORATION
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
----------------------------
Xxxxxxx, Xxxxx & Co.
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