XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
UNDERWRITING AGREEMENT
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As of November 27, 1995
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
First Union Capital Markets Corp.
One First Union Center TW-8
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 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 First Union Capital Markets Corp. ("First
Union"; Xxxxxxx Xxxxx and First Union, each, an "Underwriter" and, together, the
"Underwriters") the mortgage pass-through certificates identified in Schedule I
hereto (the "Certificates"), pursuant to this Underwriting Agreement, dated as
of November 27, 1995 (this "Agreement"), between the Company and the
Underwriters.
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. and First Union National Bank of North Carolina (together, the "Mortgage
Loan Sellers"). The Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 1, 1995 (the "Cut-off Date"), among the Company as depositor, Bankers
Trust Company as master servicer, Criimie Mae Services Limited Partnership as
special servicer and Union Bank as trustee (the "Trustee"). 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") a registration statement (No. 33-97652) 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
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subsequently filed with the Commission pursuant to Rule 424(b) under the
1933 Act, is hereinafter called the "Basic Prospectus"; such supplement, dated
November 27, 1995 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.
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(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-5 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 may be 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 Company with its obligations hereunder and thereunder
have been duly authorized by all
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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 is, 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 Loans to the Trustee and to sell the Certificates to
the Underwriters, and upon delivery to the
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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
decided adversely
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to the Company would singly, or in the aggregate, materially and
adversely affect the conduct of its business, operations or financial
condition.
(xiv) 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.
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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 November 30,
1995, 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 Federal
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 Purchaser 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.
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SECTION 4. Offering by Underwriters.
-------------------------
(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 a no-filing letter 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 and ABS 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", "Structured 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, Structured 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
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first use, to the extent such forms have not previously been approved
by the Company for use by the 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 terms 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
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corrected version of such Computational Materials or ABS Term Sheets,
shall circulate such corrected Computational Materials or ABS Term Sheets
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.
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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
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or any amendment or supplement to the Prospectus at any time
hereafter, and will furnish the 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
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the offer and sale of the Certificates is in effect, the Company will
immediately advise such Underwriter of the issuance of such stop order.
(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, each Underwriter must comply with its
obligations pursuant to Section 4 and 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), provided by each Underwriter to the Company for filing on
Form 8-K pursuant to Section 4 and, if the Company then so specifies, this
subsection (i), and that the accountants have examined in accordance with
such agreed upon 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
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and perform its obligations under each of the Pooling and Servicing
Agreement and this Agreement.
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,
will be entitled to the benefits of the Pooling and Servicing
Agreement.
E. The Registration Statement is effective under the Securities
Act of 1933, as amended (the "1933 Act") and, to the best of our
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 we render 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 our 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 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.
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I. The statements made in the Prospectus under the headings
"Description of the Certificates" and in the Memorandum under the
heading "The Privately Offered Certificates", insofar as such
statements purport to summarize certain provisions of the Certificates
and the Pooling and Servicing Agreement, provide a fair summary of
such provisions.
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 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 we 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 our knowledge, 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 our knowledge, 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 the best of 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.
-13-
In giving their opinions required by subsections (b)(i) and (b)(ii) of
this Section, (A) Counsel to the Company and the Underwriters,
respectively, shall in each case additionally state 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 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) Counsel to the Company shall additionally
state 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 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
and REMIC II as a real estate mortgage investment conduit within the meaning of
Sections 860A through 860G of the Internal Revenue Code of 1986 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
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(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 Seller, 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 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 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.
-15-
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-5 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 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. If such
notice relates to the indemnification to be provided by an Underwriter pursuant
to clause (ii) of subsection (b) of this Section 7. In case any action is
brought against any indemnified party and it notifies 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
-16-
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 party 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 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 Act)
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
-17-
person controlling the Company or an Underwriter, and (iii)Eacceptance 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.
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-
-18-
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, Xxxxxx X.
Xxxxxxxxxxx; notices to First Union shall be directed to First Union Capital
Markets Corp., Xxx Xxxxx Xxxxx Xxxxxx XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: T. Xxxxxxx Xxxxxxxx; 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.
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.
-19-
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.
-20-
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.
/s/ XXXXX XXXXXXXX
By:__________________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
/s/ XXXXXX XXXXXXXXXXX
By:________________________________
Name: Xxxxxx Xxxxxxxxxxx
Title Vice President
FIRST UNION CAPITAL MARKETS CORP.
/s/ XXXX X. XXXXX, XX.
By:________________________________
Name: Xxxx X. Xxxxx, Xx.
Title: Senior Vice President
SCHEDULE I
Underwriting Agreement, dated as of November 27, 1995.
Cut-off Date: November 1, 1995
------------------------------------------------------------------------------------------------------------------------------------
Certificates:
-------------
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Mortgage Pass-Through Certificates, Series 1995-C3
Aggregate Stated Aggregate Stated
Initial Aggregate Principal (or, in the Principal (or, in the
Stated Principal (or, case of Class IO-1 or case of Class IO-1 or
in the case of Class Class IO-2, Notional) Class IO-2, Notional)
IO-1 or Class IO-2, Amount of Class to be Amount of Class to be
Class Notional) Purchased Purchased Initial Purchase
Designation Amount of Class by Xxxxxxx Xxxxx by First Union Pass-Through Rate Price(1) Rating(2)
----------- --------------- ---------------- -------------- ----------------- -------- ---------
A-1 $135,156,000 $ 67,578,000 $ 67,578,000 6.79% 100.984375% AAA
A-2 $ 32,180,000 $ 16,090,000 $ 16,090,000 6.85% 101.000000% AAA
A-3 $276,748,000 $138,374,000 $138,374,000 7.09% 101.000000% AAA
B $ 38,616,000 $ 19,308,000 $ 19,308,000 7.15% 101.015625% AA
C $ 32,180,000 $ 16,090,000 $ 16,090,000 7.37% 101.031250% A
D $ 38,616,000 $ 19,308,000 $ 19,308,000 7.81% 101.000000% BBB
IO-1 $167,336,000 $ 83,668,000 $ 83,668,000 1.73% 6.851146% AAA
IO-2 $386,160,000 $193,080,000 $193,080,000 1.34% 7.734375% AAA
-----------------------
(1) Expressed as a percentage of the aggregate stated or notional amount,
as applicable, 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.
(2) By each of Duff & Xxxxxx Credit Rating Co. and, except in the case of the
Class IO-2 Certificates, Standard & Poor's Ratings Services.
