XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
UNDERWRITING AGREEMENT
As of June 20, 1997
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Daiwa Securities America Inc.
Financial Square, 00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation (the
"Company"), proposes to sell to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and Daiwa Securities America Inc. ("Daiwa";
Xxxxxxx Xxxxx and Daiwa, each, an "Underwriter" and, together, the
"Underwriters") the mortgage pass-through certificates identified in Schedule I
hereto (the "Certificates"), pursuant to this Underwriting Agreement (this
"Agreement").
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 GE Capital Access, Inc. (collectively, the
"Mortgage Loan Sellers"). The Certificates will be issued pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
June 1, 1997 (the "Cut-off Date"), among the Company as depositor, LaSalle
National Bank as trustee (the "Trustee"), ABN AMRO Bank N.V. as fiscal agent
(the "Fiscal Agent"), GE Capital Asset Management Corporation as master servicer
(the "Master Servicer") and GE Capital Realty Group, Inc. as special servicer
(the "Special Servicer"). The Certificates and the Mortgage Loans are described
more fully in the Prospectus (as hereinafter defined) which the Company has
furnished to the Underwriters.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statement (No. 333-1704, the "Registration
Statement") on Form S-3 for the registration of the Certificates under the
Securities Act of 1933, as amended (the "1933 Act"), which registration
statement has become effective and copies of which have heretofore been
delivered to the Underwriters. The Company proposes to file with the Commission
pursuant to Rule 424(b) under the 1933 Act a supplement to the form of
prospectus included in such registration statement relating to the Certificates
and the plan of distribution thereof. Such
registration statement, including the exhibits thereto, as amended at the date
hereof, is hereinafter called the "Registration Statement"; the prospectus
included in the Registration Statement, at the time the Registration Statement,
as amended, became effective, or as subsequently filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, is hereinafter called the "Basic
Prospectus"; such supplement, dated June 20, 1997 to the form of prospectus
relating to the Certificates, in the form in which it shall be filed with the
Commission pursuant to Rule 424 is hereinafter called the 'Prospectus
Supplement"; and the Basic Prospectus and the Prospectus Supplement, together,
hereinafter called the "Prospectus". Any preliminary form of the Prospectus that
has heretofore been filed pursuant to Rule 424(b) is hereinafter called a
"Preliminary Prospectus".
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each Underwriter as follows:
(i) The Registration Statement has become effective, and the
Registration Statement as of the effective date thereof (the "Effective
Date"), and the Prospectus as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of the
1933 Act and the rules and regulations thereunder; and the information in
the Registration Statement concerning the Company, as of the Effective
Date, did not contain any untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The information in the
Prospectus concerning the Company, as of the date of the Prospectus
Supplement, did not, and as of the Closing Date (as hereinafter defined)
will not, contain an untrue statement of a material fact and did not and
will not omit to state a material fact necessary in order to make the
information therein concerning the Company, in the light of the
circumstances under which they were made, not misleading. The parties agree
that the only information concerning the Company in the Registration
Statement is on page 30 of the Basic Prospectus under the caption "The
Depositor" and on page S-6 of the Prospectus Supplement under the caption
"Summary of Prospectus Supplement-Depositor. "
(ii) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and to conduct its
business as now conducted by it and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(iii) The Company is not in violation of its charter and by-laws or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company is a party or by which it maybe bound, or to which any of the
property of the Company is subject. The execution, delivery and performance
of this Agreement and the Pooling and Servicing Agreement and the
consummation of the transactions contemplated herein and therein and
compliance by the
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Company with its obligations hereunder and thereunder have been duly
authorized by all the necessary corporate action and will not conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property of the
Company pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company is a party or by which
it may be bound, or to which any of the property or assets of the Company
is subject.
(iv) The Certificates have been duly authorized for issuance and sale
pursuant to this Agreement and the Pooling and Servicing Agreement (or will
have been so authorized prior to the issuance of the Certificates) and,
when issued, authenticated and delivered pursuant to the provisions of this
Agreement and of the Pooling and Servicing Agreement against payment of the
consideration therefor in accordance with this Agreement, the Certificates
will be duly and validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement, except as
enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or by general
equity principles.
(v) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance
or sale of the Certificates hereunder, except such as have been, or as of
the Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the
purchase and offer and sale of the Certificates by the Underwriters and any
recordation of the respective assignments of the Mortgage Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet
been completed.
(vi) This Agreement has been, and as of the Closing Date the Pooling
and Servicing Agreement will be, duly authorized, executed and delivered by
the Company. This Agreement constitutes, and as of the Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (C) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport to
provide indemnification from securities law liabilities.
(vii) 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
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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.
(viii) Neither the Company nor the Trust Fund is required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(ix) 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.
(x) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations
identified in Schedule I hereto (the "Rating Agencies").
(xi) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Company (other than
income taxes) have been paid or will be paid at or prior to the Closing
Date.
(xii) There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other tribunal
to which the Company is a party or of which any of its properties is the
subject (a) which if determined adversely to the Company would have a
material adverse effect on the business or financial condition of the
Company, (b) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement or the Certificates, (c) seeking to prevent the
issuance of the Certificates or the consummation by the Company of any of
the transactions contemplated by the Pooling and Servicing Agreement or
this Agreement, as the case may be, or (d) which might materially and
adversely affect the performance by the Company of its obligations under,
or the validity or enforceability of, the Pooling and Servicing Agreement,
this Agreement or the Certificates.
(xiii) The Company possesses all material licenses, certificates,
authorities or permits issued by appropriate state, federal, or foreign
regulatory agencies and bodies necessary to conduct the business now
conducted by it and as described in the Prospectus, and the Company has not
received notice of any proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which if
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decided adversely to the Company would singly, or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
At the Closing Date, each of the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
(b) Each Underwriter represents and warrants to the Company that (i) such
Underwriter, as of the date hereof, complied, and as of the Closing Date, will
comply with all of its obligations hereunder and (ii) with respect to all
Computational Materials and ABS Term Sheets, if any, provided by such
Underwriter to the Company pursuant to Section 4(b)(iv), such Computational
Materials and ABS Term Sheets, as of the date hereof, are, and as of the Closing
Date, will be accurate in all material respects (taking into account the
assumptions explicitly set forth in the Computational Materials or ABS Term
Sheets) and constitutes, as of the date hereof, and as of the Closing Date, will
constitute the complete set of all Computational Materials and ABS Term Sheets
that are required to be filed with the Commission pursuant to Section 5(i).
SECTION 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Company agrees to sell
to the Underwriters, and each Underwriter agrees to purchase from the Company,
at the related purchase price set forth on Schedule I hereto, Certificates of
each class thereof having an actual amount as set forth on Schedule I hereto.
There will be added to the purchase price of the Certificates an amount equal to
interest accrued thereon pursuant to the terms thereof from the Cut-off Date to
but excluding the Closing Date.
SECTION 3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 A.M. New York City time on June 26, 1997,
which date and time may be postponed by agreement among the Underwriters and the
Company (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Company in immediately available funds wired to
such bank as may be designated by the Company, against delivery of the
Certificates. The Certificates shall be in such authorized denominations and
registered in such names as either Underwriter may request in writing at least
two business days before the Closing Date. The Certificates will be made
available for examination by the Underwriters not later than 10:00 A.M. New York
City time on the last business day prior to the Closing Date. Except as
otherwise set forth in Schedule I, delivery of 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.
SECTION 4. Offering by Underwriters.
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(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Company, in reliance upon an exemption from the Attorney General of the
State of New York granted pursuant to Policy Statement 105, has not and will not
file an offering statement pursuant to Section 352-c of the General Business Law
of the State of New York with respect to the Certificates. Each Underwriter
therefore agrees that sales of the Certificates made by such Underwriter in and
from the State of New York will be made only to institutional investors within
the meaning of Policy Statement 105.
(b) Each Underwriter may prepare and provide to prospective investors
certain Computational Materials, Structural Term Sheets and Collateral Term
Sheets in connection with its offering of the Certificates, subject to the
following conditions:
(i) Such Underwriter shall have complied with the requirements of the
no- action letter, dated May 20, 1994, issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & 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, dated February 17,
1995, issued by the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action
Letters ").
(ii) For purposes hereof, "Computational Materials" shall have the
meaning given such term in the No-Action Letters, but shall include only
those Computational Materials that have been prepared or delivered to
prospective investors by or at the direction of such Underwriter. For
purposes hereof, "ABS Term Sheets", "Structural 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, Structural Term
Sheets or Collateral Term Sheets that have been prepared or delivered to
prospective investors by or at the direction of such Underwriter.
(iii) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend substantially in the form attached
hereto as Exhibit A-1 and, in the case of Collateral Term Sheets, such
legend shall also include the statement substantially in the form set forth
on Exhibit A-2. The Company shall have the right to require specific
legends or notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of terminology and
the right to determine the types of information appearing therein.
Notwithstanding the foregoing, this subsection (iii) will be satisfied if
all Computational Materials and ABS Term Sheets referred to herein bear a
legend in a form previously approved in writing by the Company.
(iv) Such Underwriter shall have provided the Company with
representative forms of all Computational Materials and ABS Term Sheets
prior to their first use, to the extent such forms have not previously been
approved by the Company for use by the
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Underwriter. Such Underwriter shall have provided to the Company, for
filing on Form 8-K as provided in Section 5(i), copies (in such format as
required by the Company) of all Computational Materials and ABS Term Sheets
that are required to be filed with the Commission pursuant to the No-Action
Letters. The Underwriter may have provided copies of the foregoing in a
consolidated or aggregated form including all information required to be
filed. All Computational Materials and ABS Term Sheets described in this
subsection (iv) shall have been provided to the Company not later than
10:00 a.m. (New York City time) not less than one business day before
filing thereof is required pursuant to the terms of this Agreement. Such
Underwriter shall have not provided to any investor or prospective investor
in the Certificates any Computational Materials or ABS Term Sheets on or
after the day on which Computational Materials and ABS Term Sheets are
required to be provided to the Company pursuant to this subsection (iv)
(other than copies of Computational Materials or ABS Term Sheets previously
submitted to the Company in accordance with this subsection (iv) for filing
pursuant to Section 5(i)), unless such Computational Materials or ABS Term
Sheets are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(v) All information included in the Computational Materials and ABS
Term Sheets shall have been generated based on substantially the same
methodology and assumptions that are used to generate the information in
the Prospectus Supplement as set forth therein; provided that the
Computational Materials and ABS Term Sheets may have included information
based on alternative methodologies or assumptions if specified therein. If
any Computational Materials or ABS Term Sheets that are required to be
filed were based on assumptions with respect to the Mortgage Pool that
differ from the final Pool Information in any material respect or on
Certificate structuring assumptions that were revised in any material
respect prior to the printing of the Prospectus, such Underwriter shall
have prepared revised Computational Materials or ABS Term Sheets, as the
case may be, based on the final Pool Information and structuring
assumptions, shall have circulated such revised Computational Materials and
ABS Term Sheets to all recipients of the preliminary versions thereof that
indicated orally to the Underwriter they would purchase all or any portion
of the Certificates, and shall have included such revised Computational
Materials and ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that, at the request of such
Underwriter, the Company will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked
"superseded by materials dated ____________" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked, "material
previously dated __________, as corrected." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the 1933 Act, any Computational Materials or ABS Term
Sheets are determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or omission, the Underwriter shall
prepare a corrected version of such Computational Materials or ABS Term
Sheets, shall circulate such corrected Computational Materials or ABS Term
Sheets
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to all recipients of the prior versions thereof that either indicated
orally to the Underwriter they would purchase all or any portion of the
Certificates, or actually purchased all or any portion thereof, and shall
deliver copies of such corrected Computational Materials or ABS Term Sheets
(marked, "as corrected") to the Company for filing with the Commission in a
subsequent Form 8-K submission (subject to the Company's obtaining an
accountant's comfort letter in respect of such corrected Computational
Materials and ABS Term Sheets, which shall be at the expense of such
Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as of the
Closing Date, that, except for Computational Materials and/or ABS Term
Sheets provided to the Company pursuant to subsection (iv) above, such
Underwriter did not provide any prospective investors with any information
in written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and such Underwriter shall provide the Company
with a certification to that effect on the Closing Date.
(viii) In the event of any delay in the delivery by such Underwriter
to the Company of all Computational Materials and ABS Term Sheets required
to be delivered in accordance with subsection (iv) above, or in the
delivery of the accountant's comfort letter in respect thereof pursuant to
Section 5(i), the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order to
allow the Company to comply with its agreement set forth in Section 5(i) to
file the Computational Materials and ABS Term Sheets by the time specified
therein.
(ix) Such Underwriter represents that it has in place, and covenants
that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the No-Action Letters with respect to the
generation and use of Computational Materials and ABS Term Sheets in
connection with the offering of the Certificates.
(c) Each Underwriter further agrees that it shall promptly provide the
Company with such information as to matters of fact as the Company may
reasonably request to enable it to comply with its reporting requirements with
respect to each class of Certificates to the extent such information can in the
good faith judgment of the Underwriter be determined by it.
SECTION 5. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) The Company will give each Underwriter notice of its intention to file
or prepare any amendment to the Registration Statement at any time prior to the
Closing Date or any amendment or supplement to the Prospectus at any time
hereafter, and will furnish the
8
Underwriters with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be.
(b) The Company will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
(c) The Company will deliver to such Underwriter a copy of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein).
(d) The Company will furnish to each Underwriter, from time to time during
the period when the Prospectus is required to be delivered under the 1933 Act or
the Securities Exchange Act of 1934, as amended (the "1934 Act"), such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act
or the respective applicable rules and regulations of the Commission thereunder.
(e) If, during the period after the first date of the public offering of
the Certificates in which a prospectus relating to the Certificates is required
to be delivered under the 1933 Act, any event shall occur as a result of which
it is necessary to amend or supplement the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Company will forthwith amend or supplement
the Prospectus so that, as so amended or supplemented, the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing, at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to such Underwriter a reasonable number
of copies of such amendment or supplement.
(f) The Company will endeavor to arrange for the qualification of the
Certificates for sale under the applicable securities laws of such states and
other jurisdictions of the United States as such Underwriter may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of Certificates; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(g) The Company will pay or cause to be paid all fees and expenses of its
counsel. The Underwriters shall be responsible for the payment of all other
costs and expenses incurred in connection with the transactions.
(h) If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the 1933 Act, the
Company receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Certificates is
in effect, the Company will immediately advise such Underwriter of the issuance
of such stop order.
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(i) The Company will file with the Commission within fifteen days of the
issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Prospectus. The Company will also file
with the Commission a report on Form 8-K setting forth all Computational
Materials and ABS Term Sheets provided to the Company by either Underwriter and
identified by it as such within the time period allotted for such filing
pursuant to the No-Action Letters; provided, however, that prior to such filing
of the Computational Materials and ABS Term Sheets (other than any ABS Term
Sheets that are not based on the Pool Information) by the Company (A) each
Underwriter must comply with its obligations pursuant to Section 4 and (B) if
the Company determines that the methodology on which all or any part of such
Computational Materials and ABS Term Sheets were prepared is not substantially
the same as (x) the methodology on which information in the Prospectus
Supplement (or Preliminary Prospectus Supplement) was prepared or (y) a
methodology acceptable to the Company and as to the accuracy of which the
Company was otherwise given comfort satisfactory to the Company, the Company
must receive a letter from Deloitte & Touche LLP ("Deloitte"), certified public
accountants, satisfactory in form and substance to the Company, to the effect
that such accountants have performed certain specified procedures, all of which
have been agreed to by the Company, as a result of which they have determined
that the information included in the Computational Materials and ABS Term Sheets
(if any) as to which the Company has made such a determination and which they
have examined in accordance with such specified procedures is accurate except as
to such matters that are not deemed by the Company to be material. The foregoing
letter shall be at the expense of the Underwriter that provided the
Computational Materials to the Company. The Company shall file any corrected
Computational Materials described in Section 4(b)(vi) as soon as practicable
following receipt thereof.
SECTION 6. Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated to
it as set forth on Schedule I hereto shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the date hereof and as of the Closing Date, to the performance by the Company of
its obligations hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Company's knowledge, threatened by the Commission.
(b) On the Closing Date, each Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to
the Company, in form and substance satisfactory to such Underwriter,
substantially to the effect that:
A. The Company is a corporation in good standing under the
laws of the State of Delaware and has the corporate power and
authority to enter into and perform its obligations under each of
the Pooling and Servicing Agreement and this Agreement.
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B. Each of the Pooling and Servicing Agreement and this
Agreement has been duly authorized, executed and delivered by the
Company.
C. Each of the Pooling and Servicing Agreement and this
Agreement, upon due authorization, execution and delivery by the
other parties thereto, will constitute a valid, legal and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforceability may be
limited by (a) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors generally, (b) general
principles of equity, whether enforcement is sought in a
proceeding in equity or at law and (c) public policy
considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of
provisions which purport to provide indemnification from
securities law liabilities.
D. The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this
Agreement and the Certificate Purchase Agreement, will be
entitled to the benefits of the Pooling and Servicing Agreement.
E. The Registration Statement is effective under the 1933
Act and, to such counsel's knowledge, 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 threatened under Section 8(d) of the 1933 Act.
F. At the time it became effective, the Registration
Statement (other than any financial statements and supporting
schedules included therein, as to which such counsel renders no
opinion) complied as to form in all material respects with the
requirements of the 1933 Act and the applicable rules and
regulations thereunder.
G. To such counsel's knowledge, there are no material
contracts, indentures or other documents of the Company required
to be described or referred to in the Registration Statement or
to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto.
H. The offer and sale of the Privately Offered Certificates
by the Company to the Purchasers (as defined in the Certificate
Purchase Agreement) in the manner contemplated by the Certificate
Purchase Agreement do not require registration of the Privately
Offered Certificates under the 1933 Act.
I. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
Neither the Company nor the Trust Fund is required to be
registered under the Investment Company Act of 1940, as amended.
J. No consent, approval, authorization or order of any State
of New York or federal court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated by the Pooling and Servicing Agreement
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and this Agreement, except (i) such as have been obtained under
the 1933 Act, (ii) such as may be required under the securities
laws of any jurisdiction in connection with the purchase and the
offer and sale of the Certificates by the Underwriters, as to
which such counsel express no opinion and (iii) any recordation
of the assignments of the Mortgage Loans pursuant to the Pooling
and Servicing Agreement that has not yet been completed.
K. Neither the offer and sale of the Certificates nor the
consummation of any other of the transactions contemplated in or
the fulfillment of the terms of the Pooling and Servicing
Agreement and this Agreement, will conflict with or result in a
breach or violation of any term or provision of, or constitute a
default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the
certificate of incorporation or by-laws of the Company or, to the
knowledge of such counsel, any indenture or other agreement or
instrument to which the Company is a party or by which it is
bound, or any State of New York or federal statute or regulation
applicable to the Company or, to the knowledge of such counsel,
any order of any State of New York or federal court, regulatory
body, administrative agency or governmental body having
jurisdiction over the Company.
L. There are no actions, proceedings or investigations
pending, before or, to such counsel's knowledge, threatened by
any court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the
subject (a) which, if determined adversely to the Company, would
have a material adverse effect on the business or financial
condition of the Company, (b) asserting the invalidity of the
Pooling and Servicing Agreement, this Agreement or the
Certificates, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Company of any of the
transactions contemplated by the Pooling and Servicing Agreement
and this Agreement or (d) which might materially and adversely
affect the performance by the Company of its obligations under,
or the validity or enforceability of the Pooling and Servicing
Agreement and this Agreement.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriters, acceptable to such Underwriter.
In giving their opinions required by subsection (b)(i) of this
Section, counsel to the Company shall additionally state (A) that
nothing has come to such counsel's attention that would lead it to
believe that the Prospectus (other than the financial statements and
supporting schedules and statistical information included therein, as
to which no opinion need be rendered), at the date of the Basic
Prospectus, at the date of the Prospectus Supplement or at the Closing
Date, included or includes an untrue statement of a material fact or
omitted or omits 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 and (B) that nothing has come to such
counsel's attention that would lead it to believe the Registration
Statement (other than any financial statements and supporting
schedules and statistical information included therein, as to which no
opinion need be rendered), at the Effective Date, contained an untrue
statement of a material fact or omitted to state a
12
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) On the Closing Date, such Underwriter shall have received a favorable
opinion, dated the Closing Date, 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 86OG 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 "Certain 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.
(d) The Company shall have delivered to such Underwriter a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of the Company to the effect that the signer of such certificate has
examined, or has relied upon an examination conducted by appropriate persons
authorized by him, of this Agreement, the Prospectus, the Pooling and Servicing
Agreement and various other closing documents, and that, to the best of his or
her knowledge after reasonable investigation:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects;
(ii) the Company has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(e) The Company and the Underwriters shall have received from Deloitte,
certified public accountants, a letter dated the Closing Date, in form and
substance satisfactory to such Underwriter, stating in effect that:
(i) they have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial
or statistical nature set forth in the Prospectus Supplement under the
captions "Summary of the Prospectus Supplement," "Description of the
Mortgage Pool" and "Yield and Maturity Considerations" and on Annex A
agrees with the data sheet or computer tape prepared by or on behalf of the
Mortgage Loan Sellers, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed
13
upon sampling of the Mortgage Loan files and in such other sources as shall
be specified by them, and found such data and information to be in
agreement, unless otherwise noted in such letter.
(f) On or before the Closing Date, such Underwriter shall have received
confirmation satisfactory to it that the Certificates have received the ratings
set forth in Schedule I.
(g) On or before the Closing Date, such Underwriter and counsel to the
Underwriters shall have been furnished with such other documents and opinions as
they may reasonably require, including, without limitation, opinions of counsel
to the Trustee, the Master Servicer and the Special Servicer, for the purpose of
enabling them to pass upon the issuance and sale of the Certificates as herein
contemplated and related proceedings, 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 such Underwriter and counsel to
the Underwriters.
SECTION 7. Indemnification.
(a) The Company shall indemnify and hold each Underwriter and each person,
if any, who controls such Underwriter within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act from and against any and all losses,
liabilities, claims and damages caused by any untrue statements or omissions, or
alleged untrue statements or omissions, in the information concerning the
Company included in the Registration Statement (or any amendment thereto) or any
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The parties agree that the only information concerning the Company in
the Registration Statement is on page 30 of the Basic Prospectus under the
caption "The Depositor" and on page S-6 of the Prospectus Supplement under the
caption "Summary of the Prospectus Supplement Depositor.
(b) Each Underwriter shall indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all losses,
liabilities, claims and damages as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, (i) jointly
and severally if made in any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) and (ii) severally and not jointly if made in
the Computational Materials or ABS Term Sheets prepared or distributed by such
Underwriter and incorporated by reference in the Registration Statement or the
Prospectus as a result of any filing pursuant to Section 5(i).
(c) 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
which it may have otherwise than on account of this indemnity agreement. In case
any action is brought against any indemnified party and it notifies
14
the indemnifying party of the commencement thereof, the indemnifying party may
participate at its own expense in the defense of any such action and, to the
extent that it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from the indemnified party, to
assume the defense thereof, with counsel satisfactory to such indemnified party.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. 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.
Unless it shall assume the defense of any proceeding, an indemnifying party
shall not be liable for any settlement of any proceeding, effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified parry under subsection (a) or (b) or insufficient in respect of
any losses, liabilities, claims or damages referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Certificates or
(ii) if the allocation provided by clause (i) above 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 each of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (d) above. The amount paid or payable by an indemnified party as a
result of the losses, liabilities, claims or damages referred to in this
15
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Company,
either Underwriter, any of their respective directors or officers, or any person
controlling the Company or an Underwriter, and (iii) acceptance of and payment
for any of the Certificates.
SECTION 8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of either Underwriter or any controlling
person in respect of such Underwriter, and shall survive delivery of the
Certificates to the Underwriters.
SECTION 9. Default by Either of the Underwriters.
If either of the Underwriters shall fail or refuse to purchase the
Certificates that it has agreed to purchase hereunder and arrangements
satisfactory to the non-defaulting Underwriter and the Company for the purchase
of such Certificates are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of the non-defaulting
Underwriter or the Company. In any such case which does not result in
termination of this Agreement, either the non-defaulting Underwriter or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve the
defaulting Underwriter from liability in respect of any such default of such
Underwriter under this Agreement. The term "Underwriter" as used in this
Agreement shall also include, for all purposes of this Agreement, any party not
initially party to this Agreement who, with the approval of the non-defaulting
Underwriter and the Company, purchases the Certificates that the defaulting
Underwriter agreed, but failed or refused, to purchase.
16
SECTION 10. Termination of Agreement.
(a) Either Underwriter may terminate its obligations under this Agreement,
by notice to the Company and the other Underwriter, at any time at or prior to
the Closing Date if the sale of the Certificates provided for herein is not
consummated because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement.
(b) This Agreement shall be subject to termination in the absolute
discretion of either Underwriter, by notice given to the Company, if (A) after
the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriters, is
material and adverse and (B) in the case of any of the events specified in
clauses (A)(i) through (iv) above, such event singly or together with any other
such event, makes it, in the judgment of the Underwriters, impracticable to
market the Certificates on the terms and in the manner contemplated in the
Prospectus.
(c) If the obligations of an Underwriter under this Agreement are
terminated pursuant to this Section and arrangements satisfactory to the
non-terminating Underwriter and the Company for the purchase of the Certificates
originally allocated to the non-terminating Underwriter as set forth on Schedule
I hereto are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any of the parties hereto.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if mailed or transmitted by any standard form of
communication. 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 Financial Center,
North Tower, New York, New York 100281- 1315, 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.
17
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their respective successors, heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their respective successors, heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Certificates
from an Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
SECTION 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.
18
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/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Authorized Signatory
DAIWA SECURITIES AMERICA INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
19
UNDERWRITING AGREEMENT, DATED AS OF JUNE 20, 1997 SCHEDULE I
CUT-OFF DATE: June 1, 1997
CERTIFICATES: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1997-C1
Percent of Percent of
Initial Aggregate Initial Aggregate
Initial Aggregate Certificate Balance or Certificate Balance or
Certificate Balance Notional Amount to be Notional Amount to
Class or Notional Purchased by be Purchased Initial Pass- Purchase
Designation Amount of Class Xxxxxxx Xxxxx by Daiwa Through Rate Price (3) Rating (4)
----------- ------------------ ---------------------- ----------------------- ------------- --------- ----------
A-1 $251,675,000 78.52% 21.48% 6.95% 100.96875% AAA/Aaa/AA
A
A-2 86,719,000 78.52% 21.48% 7.03% 100.95313% AAA/Aaa/AA
A
A-3 254,361,000 78.52% 21.48% 7.12% 100.96875% AAA/Aaa/AA
A
IO (1) 78.52% 21.48% (2) 7.67200% AAA/Aaa/NR
B 46,243,000 78.52% 21.48% 7.12% 100.57813% AA/Aa2/AA
C 46,244,000 78.52% 21.48% 7.12% 100.01563% A/A2/A
D 42,039,000 78.52% 21.48% 7.12% 99.17188% NR/Baa2/BBB
E 16,816,000 78.52% 21.48% 7.12% 96.81250% NR/Baa3/BBB
------------
(1) The Class IO Certificates will not have a Certificate Balance, but will
represent the right to receive the sum of the interest accrued on the
notional amount of each of its Components. The Class IO-1 Component will
have a notional amount equal to the aggregate Stated Principal Balance of
the Mortgage Loans and the Class IO-2 Component will have a notional amount
equal to the aggregate Certificate Balance of the Class A-1 Certificates
and Class A-2 Certificates.
(2) The Class IO Certificates will accrue interest on the notional amount of
each of Component IO-1 and Component IO-2 as set forth in the Pooling and
Servicing Agreement.
(3) Expressed as a percentage of the initial aggregate Certificate Balance or
Notional Amount 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
or notional amount, as applicable, thereof to be purchased from the Cut-off
Date to but not including the Closing Date.
(4) By each of Fitch Investors Service, L.P., Xxxxx'x Investors Service, Inc.
and, except with respect to the Class IO Certificates, Standard & Poor's
Ratings Services, respectively. Neither the Class D Certificates nor the
Class E Certificates have been assigned a rating by Fitch Investors
Service, L.P.
EXHIBIT A-1
(a) For Structural Term Sheets:
Investors should read the Underwriter's Statement which accompanies this
Structural Term Sheet.
Prospective investors are advised to read carefully, and should rely solely
on, the prospectus and prospectus supplement (the "Final Prospectus") relating
to the securities referred to herein in making their investment decision. This
Structural Term Sheet does not include all relevant information relating to the
Securities described herein (the "Securities"), particularly with respect to the
risks and special considerations associated with an investment in the
Securities. All structural information contained herein is preliminary and it is
anticipated that such information will change. Any information contained herein
will be more fully described in, and will be fully superseded by, the
descriptions of the collateral and structure in the preliminary prospectus
supplement and Final Prospectus. Although the information contained in this
Structural Term Sheet is based on sources which the Underwriter believes to be
reliable, the Underwriter makes no representation or warranty that such
information is accurate or complete. Such information should not be viewed as
projections, forecast, predictions or opinions with respect to value. Prior to
making any investment decision, a prospective investor shall receive and fully
review the Final Prospectus. NOTHING SHOULD BE CONSIDERED AN OFFER TO SELL OR
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES.
(b) For Computational Materials:
Investors should read the Underwriter's Statement which accompanies these
Computational Materials. If the Statement is not attached please contact your
account representative. Do not use or rely on this information if you have not
received and reviewed the Statement.
These Computational Materials have been based upon the assumptions
described above. These assumptions will most likely not represent the actual
experience of the Mortgage Pool in the future. The Computational Materials are
intended to illustrate variations in yield on the [Offered Certificates] under
such assumptions. No representation is made herein as to the actual rate or
timing of principal payments or prepayments on any of the underlying Mortgage
Loans in the Mortgage Pool or the actual performance characteristics of the
(Offered Certificates].
A-1-1
EXHIBIT A-2
For Collateral Term Sheets:
Investors should read the Underwriter's Statement which accompanies this
Collateral Term Sheet.
Prospective investors are advised to carefully read, and should rely solely
on, the final prospectus and prospectus supplement (the "Final Prospectus")
relating to the securities referred to herein (the "Securities") in making their
investment decision. This Collateral Term Sheet does not include all relevant
information relating to the collateral described herein, particularly with
respect to the risks and special considerations associated therewith. All
collateral information contained herein is preliminary and such information may
change. Although the information contained in this Collateral Term Sheet is
based on sources which the Underwriter believes to be reliable, the Underwriter
makes no representation or warranty that such information is accurate or
complete. Such information should not be viewed as projections, forecasts,
predictions or opinions with respect to value. Prior to making any investment
decision, a prospective investor should receive and fully review the Final
Prospectus. NOTHING HEREIN SHOULD BE CONSIDERED AN OFFER TO SELL OR SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES.
This Collateral Term Sheet and the information contained herein win be
superseded by the description of the collateral contained in the Prospectus
Supplement (for any Collateral Term Sheet following the initial Collateral Term
Sheet; and supersedes all prior Collateral Term Sheets and the information
contained herein].
A-2-1
