XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
A DELAWARE CORPORATION
UNDERWRITING AGREEMENT
$968,618,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C2
MARCH 24, 1998
TABLE OF CONTENTS
Page
----
1. Representations and Warranties.......................................... 2
(a) Representations and Warranties by the Company................... 2
(i) Compliance with Registration Requirements............... 2
(ii) Incorporated Documents.................................. 3
(iii) Independent Accountants................................. 3
(iv) Financial Information................................... 3
(v) No Material Adverse Change in Business.................. 3
(vi) Good Standing of the Company............................ 4
(vii) Authorization of Agreement.............................. 4
(viii) Authorization of Other Agreements....................... 4
(ix) Description of the Pooling and Servicing
Agreement............................................. 4
(x) Description of the Certificates......................... 4
(xi) Absence of Defaults and Conflicts....................... 4
(xii) Absence of Labor Dispute................................ 5
(xiii) Absence of Proceedings.................................. 5
(xiv) Accuracy of Exhibits.................................... 5
(xv) Possession of Intellectual Property..................... 6
(xvi) Absence of Further Requirements......................... 6
(xvii) Possession of Licenses and Permits...................... 6
(xvii) Tax Returns............................................. 6
(xviii) Compliance with Cuba Act................................ 6
(xx) Investment Company Act.................................. 7
(xxi) Environmental Laws...................................... 7
(xxii) No Liens................................................ 7
(xxiii) Sale of Mortgage Loans.................................. 8
(xxiv) Ratings................................................. 8
(xxv) Taxes................................................... 8
(b) Officer's Certificates.......................................... 8
2. Sale and Delivery to the Underwriters; Closing.......................... 8
(a) Certificates.................................................... 8
(b) Payment......................................................... 8
(c) Denominations; Registration..................................... 9
3. Covenants of the Company................................................ 9
(a) Compliance with Securities Regulations and Commission
Requests...................................................... 9
(b) Filing of Amendments............................................ 9
(c) Delivery of Registration Statements............................. 9
(d) Delivery of Prospectuses........................................ 10
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(e) Continued Compliance with Securities Laws....................... 10
(f) Blue Sky Qualifications......................................... 10
(g) Reporting Requirements.......................................... 11
(h) Rating of Certificates.......................................... 11
(i) DTC............................................................. 11
(j) Restriction on Sale of Securities............................... 11
4. Payment of Expenses..................................................... 11
(a) Expenses........................................................ 11
(b) Termination of Agreement........................................ 11
5. Conditions of Underwriters' or Obligations.............................. 12
(a) Effectiveness of Registration Statement......................... 12
(b) Opinion of Counsel for the Master Servicer...................... 12
(c) Opinion of Counsel for the Special Servicer..................... 12
(d) Opinion of Counsel for the Underwriters......................... 12
(e) Officers' Certificate of the Company............................ 12
(f) Officers' Certificates of the Master Servicer................... 12
(g) Officers' Certificate of the Special Servicer................... 13
(h) Accountant's Comfort Letter..................................... 13
(i) Bring-down Comfort Letter....................................... 13
(j) Maintenance of Rating........................................... 13
(k) Opinion of Counsel for Trustee.................................. 13
(l) Opinion of Tax and ERISA Counsel................................ 13
(m) Opinion of Counsel for the Company.............................. 14
(n) Additional Documents............................................ 14
(o) Termination of Agreement........................................ 14
6. Indemnification......................................................... 14
(a) Indemnification of Underwriter.................................. 14
(b) Indemnification of the Company, Directors and Officers.......... 15
7. Contribution............................................................ 17
8. Representations, Warranties and Agreements to Survive Delivery.......... 18
9. Termination of Agreement................................................ 18
(a) Termination; General............................................ 18
(b) Liabilities..................................................... 19
10. Notices................................................................. 19
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11. Parties................................................................. 19
12. GOVERNING LAW AND TIME.................................................. 19
13. Effect of Headings...................................................... 19
14. Miscellaneous........................................................... 19
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$968,618,000
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
(a Delaware corporation)
Mortgage Pass-Through Certificates, Series 1998-C2
UNDERWRITING AGREEMENT
March 24, 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
DAIWA SECURITIES AMERICA INC.
Financial Square, 00 Xxx Xxxx
Xxx Xxxx, XX 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 ("Xxxxxxx Xxxxx") and Daiwa Securities America Inc. ("Daiwa"; Daiwa
and Xxxxxxx Xxxxx, each an "Underwriter" and, together, the "Underwriters"),
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
$968,618,000 aggregate initial certificate balance of the Company's Mortgage
Pass-Through Certificates, Series 1998-C2 (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., Daiwa Finance
Corp. and Daiwa Real Estate Finance Corp. (collectively, the "Mortgage Loan
Sellers"). The Certificates are to be issued pursuant to a pooling and servicing
agreement, dated as of March 1, 1998 (the "Pooling and Servicing Agreement"),
among the Company as depositor, Norwest Bank Minnesota, National Association as
trustee (the "Trustee"), First Union National Bank as master servicer (the
"Master Servicer") and CRIIMI MAE Services Limited Partnership as special
servicer (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 Trust Fund, 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 each 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 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
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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 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 statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial information included in the Registration Statement are
independent certified public accountants as required by the 1933 Act and
the 1933 Act Regulations.
(iv) Financial Information. The financial information included in the
Registration Statement and the Prospectus present fairly the financial
position of the Company.
(v) 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
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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.
(vi) 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.
(vii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(viii) Authorization of Other Agreements. Each of the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements 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.
(ix) 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
respects to the description thereof contained in the Prospectus.
(x) Description of the Certificates. At the Closing Time, the
Certificates will have been duly and validly authorized and executed by the
Trustee, and, assuming authentication as specified in the Pooling and
Servicing Agreement, will be validly issued and outstanding and entitled to
the benefits of the Pooling and Servicing Agreement. 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 filed or incorporated by reference, as the case may be, as exhibits
to the Registration Statement.
(xi) 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
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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 or any of them 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 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 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 or defaults 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. 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.
(xii) Absence of Labor Dispute. No labor dispute with the employees of
the Company exists or, to the knowledge of the Company, is imminent.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation 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 or the consummation of this Agreement or the performance by the
Company or 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.
(xiv) 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.
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(xv) Possession of Intellectual Property. The Company owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, 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")
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.
(xvi) 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
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.
(xvii) 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 conduct
the business now operated by them; 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 of 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.
(xvii) 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 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.
(xviii) Compliance with Cuba Act. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida
act relating to
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disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
(xx) 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.
(xxi) 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.
(xxii) 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 interest in and to the Mortgage Loans that are transferred by it to the
Trustee, 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, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens.
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(xxiii) 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.
(xxiv) 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").
(xxv) 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 delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to the Underwriters to
the matters covered thereby.
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 each Underwriter, and each 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 opposite the
name of such Underwriter.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Certificates shall be made at the office of Xxxxxxx Xxxx &
Xxxxxxxxx, One Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as shall be agreed upon by the Underwriters and the
Company, at 10:00 A.M. on or about March 27, 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 certificates for the
Certificates to be purchased by them. The
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certificates representing 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. Certificates for the Certificates shall be
in such denominations and registered in such names as the Underwriters 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 each 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 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 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 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. The Company has furnished or will
deliver to each Underwriter and counsel for the Underwriters, without charge,
signed copies 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 signed copies of all consents and certificates of
experts, and will also deliver to each Underwriter without charge, a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to
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each 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 each
Underwriter, without charge, as many copies of each preliminary prospectus, if
any, as each such 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 each 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 each
such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to each 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 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 Underwriters 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 each 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 each Underwriter, to qualify the Certificates for offering and
sale under the applicable securities laws of such states and other jurisdictions
as each such Underwriter may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of 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. In
each jurisdiction in which the Certificates have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement. The Company
will also supply each Underwriter with such information
-10-
as is necessary for the determination of the legality of the Certificates for
investment under the laws of such jurisdictions as each such 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 McGraw
Hill, 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 each Underwriter and use its best
efforts to permit the Certificates 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 Underwriters, 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 for the Certificates to
each 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 either
Underwriter in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the
-11-
Company shall reimburse such Underwriter for all of its out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for such Underwriter.
5. Conditions of Underwriters' Obligations. The obligations of each
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 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. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Master Servicer, in form and substance satisfactory to
counsel for the Underwriters.
(c) Opinion of Counsel for the Special Servicer. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Special Servicer, in form and substance satisfactory to
counsel for the Underwriters.
(d) Opinion of Counsel for the Underwriters. At the Closing Time, each
Underwriter shall have received the favorable opinions, dated as of the Closing
Time, of counsel for the Underwriters. 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 Underwriters and certificates
of public officials.
(e) 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 with the same force and
effect as though expressly made at and as of the Closing Time, (iii) each has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied 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 are
contemplated by the Commission.
(f) Officers' Certificates of the Master 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
-12-
enterprise, 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 Master Servicer, dated as of the Closing Time, to that effect.
(g) Officers' Certificate of 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 Special Servicer and its subsidiaries considered as one enterprise, 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 Special
Servicer, dated as of the Closing Time, to that effect.
(h) Accountant's Comfort Letter. At or prior to the time of the execution
of this Agreement, each Underwriter shall have received from Deloitte & Touche
LLP ("Deloitte") a letter dated such date, in form and substance satisfactory to
each Underwriter, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to each Underwriter with respect to
certain financial information contained in the Registration Statement and the
Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, each Underwriter shall
have received from Deloitte a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) 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.
(j) 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.
(k) Opinion of Counsel for Trustee. At the Closing Time, each 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
Underwriters.
(l) Opinion of Tax and ERISA Counsel. At the Closing Time, each 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, are correct in all
material respects with respect to those consequences or matters that are
discussed therein.
-13-
(m) Opinion of Counsel for the Company. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the Closing
Time, of counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters.
(n) Additional Documents. At the Closing Time, counsel for the Underwriters
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 each Underwriter and counsel for
the Underwriters.
(o) 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 either 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 Underwriters. The Company agrees to indemnify and
hold harmless each 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 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
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 to the Company expressly for use
in the Registration Statement, the Prospectus, 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;
-14-
(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 such 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 furnished to the Company by such
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).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter agrees to indemnify and hold harmless the Company 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 furnished to the Company by such
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 such 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
-15-
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 20, 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 such 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 such
Underwriter. For purposes hereof, "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 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 indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, 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 (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party
-16-
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 45 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 30 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
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 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 such
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 such
Underwriter on the other hand in connection with the offering 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 of the
Certificates pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by such Underwriter, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Certificates as set forth on such cover.
The relative fault of the Company on the one hand and such Underwriter on the
other hand shall be determined by reference to, among other things, 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 such Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and each 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.
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 price at which the
-17-
Certificates underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (with 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 each
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 such 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. Each 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.
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 each Underwriter or controlling person, or by or on behalf of
the Company, and shall survive delivery of the Certificates to each Underwriter.
9. Termination of Agreement.
(a) Termination; General. Either 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 any of the Mortgage Loan Sellers,
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 such 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 any of
the Mortgage Loan Sellers 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 in the NASDAQ National Market System 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.
-18-
(b) Liabilities. If this Agreement is terminated pursuant to the Section,
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 if mailed 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
Banking; notices to Daiwa shall be directed to Daiwa Securities America Inc.,
Financial Square, 00 Xxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Commercial Mortgage Department, with a copy to the General Counsel; and notices
to the Company shall be directed to Xxxxxxx Xxxxx Mortgage Investors, Inc.,
World Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, 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 each 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 each 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 each 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 any 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 Article and Section headings herein and the
Table of Contents are for convenience 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.
-19-
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 XXXXXXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Authorized Signatory
DAIWA SECURITIES AMERICA INC.
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
-20-
SCHEDULE A
UNDERWRITING AGREEMENT, DATED MARCH 24, 1998
CUT-OFF DATE: March 1, 1998
CERTIFICATES: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C2
Percent of Percent of
Initial Initial
Certificate Certificate
Initial Balance to be Balance to be
Class Certificate Purchased by Purchased by Initial Pass- Purchase
Designation Balance of Class Xxxxxxx Xxxxx Daiwa Through Rate Price(1) Rating(2)
----------- ---------------- ------------- ------------- ------------- -------- ---------
A-1 $229,904,000 58% 42% 6.22% 100.500000% Xxx/XXX
X-0 $559,138,000 58% 42% 6.39% 100.718750% Aaa/AAA
B $ 32,650,000 58% 42% (3) 100.734375% Aa2/AA
C $ 59,859,000 58% 42% (3) 100.687500% A2/A
D $ 70,742,000 58% 42% (3) 100.734375% Baa2/BBB
E $ 16,325,000 58% 42% (3) 100.718750% Baa3/BBB-
IO (4) 58% 42% (4) 9.128593% Aaa/AAAr
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(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 Investors Service, Inc. 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 1.41%, 1.25%, 0.90% and 0.56%, 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 $1,088,330,822.
