XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
$531,719,000 (Approximate)
Mortgage Pass-Through Certificates
Series 1999-C1
UNDERWRITING AGREEMENT
New York, New York
October 29, 1999
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center, North Tower
New York, New York 10281
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation (the
"Company"), proposes to cause to be issued its Mortgage Pass-Through
Certificates, Series 1999-C1 (the "Certificates"), consisting of 14 classes
designated as the Class A-1, Class A-2, Class B, Class C, Class D, Class E,
Class IO, Class F, Class G, Class H, Class J, Class K, Class R-I, Class R-II and
Class R-III Certificates under a Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), to be dated as of November 1, 1999, among the
Company, as depositor (the "Depositor"), ORIX Real Estate Capital Markets, LLC,
as master servicer (in such capacity, the " Master Servicer"), ORIX Real Estate
Capital Markets, LLC, as special servicer (in such capacity, the "Special
Servicer"), Norwest Bank Minnesota, National Association, as trustee (the
"Trustee") and proposes to sell the Class A-1, Class A-2, Class B, Class C,
Class D, Class E, Class F and Class IO Certificates (collectively, the "Offered
Certificates") to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and
PaineWebber Incorporated as underwriters (each an "Underwriter" and
collectively, the "Underwriters"). The Certificates will represent in the
aggregate the entire beneficial ownership interest in a trust (the "Trust")
primarily consisting of a segregated pool (the "Mortgage Pool") of conventional
monthly pay fixed rate mortgage loans secured by commercial, multifamily,
health-care related and manufactured housing properties (the "Mortgage Loans").
The Mortgage Loans will be purchased by the Company from Xxxxx Xxxxxx Real
Estate Securities Inc., Xxxxxxx Xxxxx Mortgage Capital Inc. and ORIX Real Estate
Capital Markets, LLC (collectively, the "Mortgage Loan Sellers") pursuant to
three Mortgage Loan Purchase and Sale Agreements (collectively, together with
any supplements thereto, the "Mortgage Loan Purchase Agreements"), each by and
between the Company and the applicable Mortgage Loan Seller, in exchange for
immediately available funds. The Offered Certificates are
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described more fully in the Registration Statement (as hereinafter defined).
This is to confirm the arrangements with respect to your purchase of the Offered
Certificates.
Capitalized terms used but not defined herein shall have the
meanings assigned thereto in the Final Prospectus (as hereinafter defined).
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 333-38073) for the registration of the Offered Certificates, among other
mortgage pass-through 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 you. Such registration statement, as
amended as of the date hereof, meets the requirements set forth in Rule
415(a)(1)(x) under the 1933 Act and complies in all other material respects with
the 1933 Act and the rules and regulations thereunder. The Company proposes to
file with the Commission pursuant to Rule 424 under the 1933 Act a supplement to
the form of prospectus included in such registration statement relating to the
Offered Certificates and the plan of distribution thereof and has previously
advised you of all further information (financial and other) with respect to the
Offered Certificates and the Mortgage Pool to be set forth therein. 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, as amended, is hereinafter called the
"Basic Prospectus"; such form of prospectus supplemented by the supplement to
the form of prospectus relating to the Offered Certificates, in the form in
which it shall be first filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus that has
heretofore been filed pursuant to Rule 424 or, prior to the effective date of
the Registration Statement, pursuant to Rule 402(a) or Rule 424(a) is
hereinafter called a "Preliminary Final Prospectus."
(b) (i) The Registration Statement, as of its effective date or the
effective date of any post-effective amendment thereto filed prior to the
Closing Date, and the Final Prospectus, as of the date that it is first filed
pursuant to Rule 424 under the 1933 Act or, as amended or supplemented, as of
the date such amendment or supplement is filed pursuant to Rule 424 under the
1933 Act, complied or will comply, as applicable, in all material respects with
the applicable requirements of the 1933 Act and the rules and regulations
thereunder, (ii) the Registration Statement as of its effective date and as of
the date of this Agreement, and, as amended by any such post-effective
amendment, as of the effective date of such amendment, did not and will not
contain any untrue statement of a material fact and did not omit and will not
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) the Final Prospectus as of
its issue date and as of the Closing Date, or as amended or supplemented, as of
the issue date of such amendment or supplement and as of the Closing Date, will
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company makes no
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representations or warranties as to the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with the information
furnished in writing to the Company by or on behalf of any Underwriter
specifically for use in connection with the preparation of the Registration
Statement and the Final Prospectus.
(c) 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
full power and authority (corporate and other) to own its properties and conduct
its business, as now conducted by it, and to enter into and perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement; and the Company has received no notice of
proceedings relating to the revocation or modification of any license,
certificate, authority or permit applicable to its owning such properties or
conducting such business which singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely affect
the conduct of the business or the operations, financial condition or income of
the Company.
(d) At each of the following times there has not been and will not
have been or, to the knowledge of the Company, there is not contemplated and
will not have been contemplated by the Commission, (i) any request by the
Commission for any further amendment of the Registration Statement or the Final
Prospectus or for any additional information that has not been complied with,
(ii) any issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening of
any proceeding for that purpose or (iii) any notification with respect to the
suspension of the qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose: (a) the date on which the Final Prospectus is first filed pursuant to
Rule 424 under the 1933 Act; (b) each date, prior to the Closing Date (as
hereinafter defined), on which any amendment to the Registration Statement
becomes effective; (c) the date on which any supplement to the Final Prospectus
is filed with the Commission; and (d) the Closing Date.
(e) This Agreement and the Mortgage Loan Purchase Agreements have
been, and the Pooling and Servicing Agreement when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Company, and each constitutes, or will constitute when so
executed and delivered, 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 (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws affecting the
enforcement of the rights of creditors, (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law and (iii)
public policy considerations underlying the securities laws.
(f) The Offered Certificates and the Pooling and Servicing Agreement
will each conform in all material respects to the descriptions thereof contained
in the Final Prospectus, and the Offered Certificates will have been duly
authorized prior to the issuance thereof, and the Offered Certificates will be
validly issued and outstanding and shall be entitled to the benefits of the
Pooling and Servicing Agreement, except as the enforceability thereof may be
limited by the effects of (i) bankruptcy, reorganization, insolvency,
moratorium, receivership, liquidation or
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other similar laws affecting the enforcement of the rights of creditors, (ii)
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (iii) public policy considerations
underlying the securities laws.
(g) Neither the issuance of the Certificates, nor the execution and
delivery by the Company of this Agreement, the Mortgage Loan Purchase Agreements
or the Pooling and Servicing Agreement, nor the consummation by the Company of
any of the transactions herein or therein contemplated, nor compliance by the
Company with the provisions hereof or thereof, will conflict with or result in a
breach of any term or provision of the certificate of incorporation or by-laws
of the Company or conflict with, result in a breach, violation or acceleration
of or constitute a default under, the terms of any indenture or other agreement
or instrument to which the Company is a party or by which it is bound, or any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company, which, in any such case, would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, the
Mortgage Loan Purchase Agreements or the Pooling and Servicing Agreement. The
Company is not a party to, bound by or in breach or violation of any indenture
or other agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and adversely
affects, or is reasonably likely in the future to materially and adversely
affect, the ability of the Company to perform its obligations under this
Agreement, the Mortgage Loan Purchase Agreements or the Pooling and Servicing
Agreement.
(h) There are no actions or proceedings against, or investigations
of, the Company pending, or, to the knowledge of the Company, threatened, before
any court, administrative agency or other tribunal (i) asserting the invalidity
of this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and
Servicing Agreement or the Offered Certificates, (ii) seeking to prevent the
issuance of the Offered Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement, (iii) that might materially
and adversely affect the performance by the Company of its obligations under, or
the validity or enforceability of, this Agreement, the Mortgage Loan Purchase
Agreements, the Pooling and Servicing Agreement or the Offered Certificates or
(iv) seeking to affect adversely the federal income tax attributes of the
Offered Certificates as described in the Final Prospectus.
(i) The Trust created by the Pooling and Servicing Agreement will
not be required to be registered as an investment company under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the Pooling
and Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(j) 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
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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 Offered Certificates to the
Underwriters. The Company is not selling Certificates to the Underwriters with
any intent to hinder, delay or defraud any creditors of the Company.
(k) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale
of the Certificates hereunder or the consummation of the transactions of the
Company contemplated by this Agreement, except such as may be required under the
1933 Act Regulations, the 1939 Act Regulations or state securities or blue sky
laws and except as has been or will be obtained prior to the Closing Date and
except for any documents permitted to be filed on Form 8-K after the Closing
Date and any Computational Materials provided to the Company in accordance with
Section 9 herein.
(l) The Company has filed all federal, state, local and foreign tax
returns that are required to be filed or has duly requested extensions thereof
and has paid all taxes required to be paid by it and any related assessments,
fines or penalties, except for any such tax, assessment, fine or penalty that is
being contested in good faith and by appropriate proceedings; and adequate
charges, accruals and reserves have been provided for in respect of all federal,
state, local and foreign taxes for all periods as to which the tax liability of
the Company has not been finally determined or remains open to examination by
applicable taxing authorities.
(m) On the Closing Date, the Company (i) will have good and
marketable title to the Mortgage Loans being transferred by it to the Trust
pursuant thereto, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest placed thereon by the
Company (collectively, "Liens"), to the extent good and marketable title to the
Mortgage Loans is transferred to the Company, and (ii) will have the power and
authority to transfer such Mortgage Loans to the Trust, and upon execution and
delivery of the Pooling and Servicing Agreement by the Trust, the Trust will
have acquired ownership of all of the Company's right, title and interest in and
to the related Mortgage Loans.
(n) Any taxes, fee and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements and the Certificates
payable by the Company (other than income taxes) have been paid or will be paid
at or prior to the Closing Date.
2. Purchase and Sale. Subject to the terms and conditions, and in reliance
upon the representations and warranties, set forth herein, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the applicable purchase price set
forth in a letter agreement dated as of even date herewith by and among the
Company and the Underwriters (the "Purchase Letter"), the respective portions of
each Class of the Offered Certificates set forth opposite such Underwriter's
name in Schedule I hereto, plus accrued interest on each such Class at the
related Pass-Through Rate from November 1, 1999 to but not including the Closing
Date.
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3. Delivery and Payment. Delivery of and payment for the Offered
Certificates shall be made in the manner, on the date and at the time specified
in the Purchase Letter (or such later date not later than seven business days
after such specified date as the Underwriters shall designate), which date and
time may be postponed by agreement between the Underwriters and the Company or
as provided in Section 8 hereof (such date and time of delivery and payment for
the Offered Certificates being herein called the "Closing Date"). Delivery of
the Offered Certificates as set forth in the Purchase Letter shall be made to
the Underwriters for their respective accounts against payment by wire transfer
of immediately available funds by the several Underwriters of the applicable
purchase price as set forth in the Purchase Letter. Unless delivery is made
through the facilities of The Depository Trust Company, the Offered Certificates
shall be registered in such names and in such authorized denominations as the
Underwriters may request not less than 3 full business days in advance of the
Closing Date.
(b) The Company agrees to have the Offered Certificates available
for inspection, checking and packaging by the Underwriters in New York, New
York, not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Offered Certificates for sale to the public as set forth in
the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will not file, on or prior to the Closing Date, any
amendment to the Registration Statement or file any supplement to (including the
supplement relating to the Offered Certificates included in the Final
Prospectus) the Basic Prospectus unless the Company has furnished to you a copy
for your review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing sentence,
the Company will cause the Final Prospectus to be transmitted to the Commission
for filing pursuant to Rule 424 under the 1933 Act. The Company will promptly
advise the Underwriters (i) when the Final Prospectus shall have been filed or
transmitted to the Commission for filing pursuant to Rule 424, (ii) when any
amendment to the Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement or
the Final Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered Certificates for
sale in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order or suspension and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
or supplement the Final Prospectus to comply with the 1933 Act or the rules and
regulations thereunder, the
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Company will promptly prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance and, if
such amendment or supplement is required to be contained in a post-effective
amendment of the Registration Statement, will use its reasonable best efforts to
cause such amendment of the Registration Statement to be made effective as soon
as possible.
(c) The Company will (i) furnish to the Underwriters and counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto that shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the Offered
Certificates may be required by the 1933 Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request, and (ii) file
promptly all reports and any information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), subsequent to the
date of the Final Prospectus and for so long as the delivery of a prospectus by
an underwriter or dealer in connection with the Offered Certificates may be
required under the 1933 Act. The Company will file with the Commission within 15
days of the issuance of the Offered Certificates a report on Form 8-K setting
forth specific information concerning the Offered Certificates and the Mortgage
Pool to the extent that such information is not set forth in the Final
Prospectus.
(d) The Company agrees that, so long as the Offered Certificates
shall be outstanding, it will make available to the Underwriters the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.13 of
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section 3.14
of the Pooling and Servicing Agreement, as soon as such statements are furnished
to the Company. The Pooling and Servicing Agreement will provide that the Master
Servicer and the Special Servicer furnish to the Underwriters all reports
compiled by either of them pursuant to the Pooling and Servicing Agreement under
the same terms and conditions applicable to holders of the Offered Certificates.
(e) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Offered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect so
long as required for the distribution of the Offered Certificates; provided,
however, that the Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now so subject.
(f) The Company will pay, to the extent not paid by the Mortgage
Loan Sellers pursuant to the Mortgage Loan Purchase Agreements, all costs and
expenses in connection with the transactions herein contemplated, including, but
not limited to: (i) the fees and disbursements of its counsel; (ii) the costs
and expenses of printing (or otherwise reproducing) and delivering the Pooling
and Servicing Agreement and the Offered Certificates; (iii) accounting fees and
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disbursements; (iv) the costs and expenses in connection with the qualification
or exemption of the Offered Certificates under state securities or blue sky laws
not to exceed $10,000, including filing fees and reasonable fees and
disbursements of counsel in connection with the preparation of any blue sky
survey and in connection with any determination of the eligibility of the
Offered Certificates for investment by institutional investors and the
preparation of any legal investment survey; (v) the expenses of printing any
such blue sky survey and legal investment survey; (vi) the costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits thereto), the Basic Prospectus, the Preliminary
Final Prospectus and the Final Prospectus, the preparation and printing of this
Agreement and the furnishing to the Underwriters of such copies of each
Preliminary Final Prospectus and Final Prospectus as the Underwriters may
reasonably request and (vii) the fees of each Rating Agency (as defined herein).
The Underwriters shall be responsible for paying all costs and expenses incurred
by them in connection with the offering of the Offered Certificates.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Offered Certificates shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed after the date hereof and
prior to the Closing Date and as of the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and not
withdrawn and no proceedings for that purpose shall have been instituted or
threatened; and the Final Prospectus shall have been filed or transmitted for
filing with the Commission in accordance with Rule 424 under the 1933 Act.
(b) The Company shall have delivered to you a certificate of the
Company, signed by the Chairman, the President, a managing director, a vice
president or an assistant vice president of the Company and dated the Closing
Date, to the effect that the signer of such certificate has carefully examined
the Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true
and correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date; (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 at or prior to the Closing Date; (iii) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened and (iv) nothing has come to the attention of
such officer that would lead such officer to believe that the Final Prospectus
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The Underwriters shall have received from Xxxxxxx Xxxx &
Xxxxxxxxx, special counsel for the Company, a favorable opinion, dated the
Closing Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
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(i) The Company is a corporation in good standing under the
laws of the State of Delaware with corporate power to enter into and perform its
obligations under this Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement;
(ii) The Registration Statement and any amendments thereto
have become effective under the 1933 Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement, as
amended, has been issued, and not withdrawn, no proceedings for that purpose
have been instituted or threatened, and not terminated, and the Registration
Statement, the Final Prospectus and each amendment thereof or supplement thereto
as of their respective effective or issue dates complied as to form in all
material respects with the applicable requirements of the 1933 Act and the rules
and regulations thereunder; and such counsel does not believe that the
Registration Statement (which, for purposes of this clause, shall not be deemed
to include any exhibits thereto or any documents or other information
incorporated therein by reference), or any amendment thereof, at the time it
became effective and at the date of this Agreement, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Final Prospectus as of its issue date and as of the Closing Date, or as
amended or supplemented, as of the issue date of such amendment or supplement
and as of the Closing Date, contains any untrue statement of a material fact 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;
(iii) This Agreement, the Pooling and Servicing Agreement and
the Mortgage Loan Purchase Agreements have been duly authorized, executed and
delivered by the Company and each such agreement constitutes 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, (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 such agreements that purport to provide indemnification or
contribution from securities law liabilities;
(iv) The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and Servicing
Agreement and paid for by the Underwriters as provided herein, will be entitled
to the benefits of the Pooling and Servicing Agreement;
(v) The statements in the Basic Prospectus and the Final
Prospectus, as the case may be, under the headings "Certain Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, are correct in
all material respects;
(vi) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act, and the Trust created by the Pooling
and Servicing Agreement is not required to be registered under the Investment
Company Act;
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(vii) No consent, approval, authorization or order of any New
York or federal court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated herein, except such
as may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Offered Certificates by the
Underwriters, and any recordation of the assignment of the Mortgage Loans to the
Trustee pursuant to the Pooling and Servicing Agreement that have not yet been
completed and such other approvals as have been obtained; and
(viii) Neither the issuance and sale or transfer of the
Certificates, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of the Mortgage Loan
Purchase Agreements or the Pooling and Servicing 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 New York or federal statute or regulation applicable to the Company or,
to the knowledge of such counsel, any order of any New York or federal court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company.
Such opinion may (x) express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement, the Mortgage
Loan Purchase Agreements and the Pooling and Servicing Agreement, (y) assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company and (z) be
qualified as an opinion only on the federal laws of the United States of America
and the laws of the State of Delaware. Additionally, if so rendered, Xxxxxxx
Xxxx & Xxxxxxxxx may rely on the opinion of in-house counsel for the Company as
to matters relating to the Company.
(d) The Underwriters shall have received from Deloitte & Touche LLP
(the "Accountant"), one or more letters, dated the date hereof and satisfactory
in form and substance to the Underwriters and counsel for the Underwriters.
(e) The Certificates have been given the rating, if any, set forth
in the Final Prospectus by Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies ("S&P") and Duff & Xxxxxx Credit Rating Co. ("DCR" and,
together with S&P, the "Rating Agencies").
(f) The Underwriters shall have received from counsel for the
Underwriters, dated the Closing Date, an opinion in form and substance
satisfactory to the Underwriters.
(g) The Underwriters shall have received from counsel for the
Trustee, a favorable opinion, dated the Closing Date, and in form and substance
satisfactory to the Underwriters and counsel for the Underwriters.
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(h) The Underwriters shall have received from counsel for each
Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters.
(i) The Underwriters shall have received from counsel for each of
the Master Servicer and Special Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any opinions of
counsel to the Company or each Mortgage Loan Seller supplied to the Rating
Agencies or the Trustee relating to certain matters with respect to the Offered
Certificates, the Mortgage Loan Sellers and the Mortgage Loans. Any such
opinions shall be dated the Closing Date and addressed to the Underwriters or
accompanied by the reliance letters to the Underwriters or shall state that the
Underwriters may rely upon them.
(k) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, and the
Underwriters and counsel for the Underwriters shall have received such further
information, certificates and documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by telephone or
telegraph confirmed in writing.
7. Indemnification and Contribution. The Company and the several
Underwriters agree that:
(a) The Company will indemnify and hold harmless each Underwriter,
and each person who controls any Underwriter within the meaning of either the
1933 Act or the 1934 Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation or at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or
in any amendment thereof or supplement thereto, or Pool Information contained in
any Structural Term Sheets or Collateral Term Sheets or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses
11
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein (a) in reliance upon and in conformity with any Underwriter Information
(as defined in Section 9) or (b) arising out of or based upon the failure of any
Underwriter to comply with any provision of Section 9 hereof; provided, further,
however, that with respect to any untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or in any
amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, the indemnity contained in this subsection (a) shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased the Offered Certificates
(or to the benefit of any person controlling such Underwriter), to the extent
that any such loss, claim, damage or liability of such Underwriter or
controlling person results from the fact that a copy of the Basic Prospectus or
the Final Prospectus correcting such misstatement or omission and previously
delivered to such Underwriter was not sent or given to such person at or prior
to the written confirmation of the sale of such Offered Certificates to such
person or from the fact that any amendment of or supplement to the registration
statement for the registration of the Offered Certificates, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus correcting
such misstatement or omission and delivered to the Underwriters at least 24
hours prior to the Closing Date was not sent or given to such person prior to
the settlement of the sale of the Offered Certificates to such person (unless
the Company shall have agreed that such amendment or supplement need not be so
sent or given). This indemnity agreement will be in addition to any liability
which the Company may otherwise have; provided, however, that the Company shall
not be liable to any Underwriter for losses of anticipated profits from the
transactions covered by this Agreement.
(b) Each Underwriter severally will indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person, if any, who controls the Company within the meaning
of either the 1933 Act or the 1934 Act, against any and all losses, claims,
damages or liabilities, joint or several, to which the Company or any of them
may become subject under the 1933 Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment thereof or supplement thereto, or any
Underwriter Information contained in an 8-K (containing Furnished Term Sheets or
Furnished Computational Materials) or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (ii) the failure of such Underwriter or any member of
its selling group to comply with any provision of Section 9 hereof, and each
Underwriter agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
but, in the case of clause (i) above, only with reference to written information
furnished to the Company by or on behalf of such Underwriter or any member of
its selling group, specifically for use in the
12
Registration Statement, or in any revision or amendment thereof, or supplement
thereto, or in the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, and, in the case of clause (ii) above, only the Underwriter
who failed to comply with Section 9 hereof shall have the foregoing obligations
for such failure, provided however, that each such Underwriter shall have the
foregoing obligations for any such failure by any member of its selling group.
This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party (x) hereunder unless such failure to notify prejudices the
position of the indemnifying party or results in the loss of one or more
defenses to the related cause of action or (y) otherwise than under this Section
7. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice, delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel (and one local
counsel, if it deems so necessary) to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by any indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for expenses incurred by the
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel and one local counsel,
approved by the Underwriters in the case of subsection (a), representing the
indemnified parties under subsection (a) who are parties to such action), (ii)
the indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the counsel referred
to in such clause (i) or (iii). The indemnifying party shall not be liable for
any settlement of any action effected without its prior written consent, which
consent shall not be unreasonably withheld, but if settled with such consent,
the indemnifying party shall indemnify the indemnified party from and against
any indemnifiable losses, claims, damages and liabilities by reason of such
settlement. No indemnifying party who has elected to assume the defense of such
action shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action
13
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable in accordance with its terms to an indemnified party
under this Section 7, then the Company and each Underwriter, to the extent of
underwriting discounts and commissions received by it, shall individually
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a) or
(b) above, in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company, on the one hand, and each Underwriter, on the
other hand, from the offering of the Offered Certificates (taking into account
the portion of the proceeds of the offering realized by each party) and (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 to reflect the relative fault of the
Company on the one hand and each Underwriter on the other in connection with the
statement or omission or failure to comply that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations
(taking into account the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission or failure to
comply, and any other equitable consideration appropriate under the
circumstances). The relative benefits received by the Company on the one hand
and each Underwriter, including any member of its selling group (in each case,
as set forth on Schedule I), on the other shall be in such proportion as the
total net proceeds from the offering of the Offered Certificates (before
deducing expenses) received by the Company bear to the total underwriting
discounts and commissions received by each Underwriter, including any member of
its selling group, with respect to such offering. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the respective
Underwriter, or any member of its selling group, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission or failure to comply. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were to be determined by per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending against any action or claim which is the subject
of this subsection (d) subject to the limitations therein provided under
subsection (c). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Certificates underwritten and
distributed by it were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise paid or become liable to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of
14
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) or willful failure to comply with Section 9 hereof shall be entitled to
contribution from any person who was not also guilty of such fraudulent
misrepresentation or willful failure to comply. The Underwriters' obligation in
this subsection 7(d) to contribute shall be several in proportion to their
respective underwriting obligations and not joint.
(e) Each Underwriter will indemnify and hold harmless any other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either the 1933 Act or the 1934 Act (collectively, the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages or liabilities, joint or several, to which any Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation or at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement of material fact contained in any
computational or other written materials developed by, mailed or otherwise
transmitted by such indemnifying Underwriter or any member of its selling group,
in connection with the Offered Certificates or in any revision or amendment
thereof or supplement thereto or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 9 hereof, and agrees to reimburse each such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have.
8. Default by an Underwriter. If, on the Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
nondefaulting Underwriters may make arrangements for the purchase of the Offered
Certificates which such defaulting Underwriter agreed but failed to purchase by
other persons satisfactory to the Company and the non-defaulting Underwriters,
but if no such arrangements are made within 36 hours after such default, this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Section 5(f) and except
that the provisions of Sections 7 and 9 shall not terminate and shall remain in
effect. As used in this Agreement, the term "Underwriters" includes, for all
purposes of this Agreement unless the context otherwise requires, any party not
listed in Schedule I hereto that, pursuant to this Section 8 purchases Offered
Certificates which a defaulting Underwriter agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default. If other persons are obligated or agree to
purchase the Offered Certificates of a defaulting Underwriter, either the
non-defaulting Underwriters or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in the opinion
of the counsel for the Company or counsel for the Underwriters may be necessary
in the Registration Statement and/or the Final Prospectus or in any other
document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and/or the Final
Prospectus that effects any such changes.
15
9. Computational Materials and ABS Term Sheets.
(a) The parties acknowledge that, subsequent to the date on which
the Registration Statement became effective and up to and including the date on
which the Final Prospectus with respect to the Offered Certificates is first
made available to the Underwriters, the Underwriters, including any member of
its selling group, may furnish to various potential investors in Offered
Certificates, in writing: (i) "Computational Materials", as defined in a
no-action letter (the "Xxxxxx No-Action Letter") issued by the staff of the
Commission on May 20, 1994 to Xxxxxx, Xxxxxxx Acceptance Corporation I, et al.,
as modified by a no-action letter (the "First PSA No-Action Letter") issued by
the staff of the Commission on May 27, 1994 to the Public Securities Association
(the "PSA") and as further modified by a no-action letter (the "Second PSA
No-Action Letter," and together with the Xxxxxx No-Action Letter and the First
PSA No-Action Letter, the "No-Action Letters") issued by the staff of the
Commission on February 17, 1995 to the PSA; (ii) "Structural Term Sheets", as
defined in the Second PSA No-Action Letter and/or (iii) "Collateral Term
Sheets", as defined in the Second PSA No-Action Letter.
(b) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, at least one business day prior to the time of
filing of the Final Prospectus pursuant to Rule 424 under the 1933 Act, all
Computational Materials used by such Underwriter, or any member of its selling
group, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Computational Materials, the "Furnished Computational Materials").
(c) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, at least one business day prior to the time of
filing of the Final Prospectus pursuant to Rule 424 under the Act, all
Structural Term Sheets prepared by such Underwriter, or any member of its
selling group for the Company with respect to the offering of the Offered
Certificates and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the NoAction Letters (such
Structural Term Sheets, the "Furnished Structural Term Sheets").
(d) In connection with the Offered Certificates, each Underwriter
shall furnish to the Company, within one business day after the first use
thereof, all Collateral Term Sheets prepared by such Underwriter, or any member
of its selling group for the Company with respect to the offering of the Offered
Certificates, and required to be filed with the Commission in order for such
Underwriter to avail itself of the relief granted in the No-Action Letters (such
Collateral Term Sheets, the "Furnished Collateral Term Sheets" and together with
the Furnished Structured Term Sheets, the "Furnished Term Sheets") and shall
advise the Company of the date on which each such Collateral Term Sheet was
first used.
(e) The Company shall cause to be filed with the Commission one or
more current reports on Form 8-K (collectively, together with any amendments and
supplements thereto, the "8-Ks," and each an "8-K") with respect to all
Furnished Computational Materials, Structural Term Sheets and Collateral Term
Sheets used by it or any member of its selling group (pro rating the costs and
expenses thereof in a manner agreed to by the Underwriters) such that such
16
Underwriter may avail itself of the relief granted in the No-Action Letters. In
particular, the Company shall cause to be filed with the Commission (i) all of
the Furnished Computational Materials and all of the Furnished Structural Term
Sheets on an 8-K prior to or concurrently with the filing of the Final
Prospectus with respect to the Offered Certificates pursuant to Rule 424 under
the 1933 Act; and (ii) all of its Furnished Collateral Term Sheets on an 8-K not
later than 2 business days after the first use thereof.
(f) Each Underwriter represents and warrants to, and covenants with,
the Company that as presented in any Furnished Term Sheets, the Underwriter
Information (defined below) is not misleading and not inaccurate in any material
respect and that any Pool Information (defined below) contained in any Furnished
Term Sheets prepared by it which is not otherwise inaccurate in any material
respect is not presented in such Furnished Term Sheets prepared by it in a way
that is either misleading or inaccurate in any material respect. Each
Underwriter further covenants with the Company that if any Computational
Materials or ABS Term Sheets (as such term is defined in the Second PSA
No-Action Letter) contained in any Furnished Term Sheets are found to include
any information that is misleading or inaccurate in any material respect, such
Underwriter promptly shall inform the Company of such finding, provide the
Company with revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be, in order to remit to the Company to cause to be
delivered for filing to the Commission in accordance herewith, an 8-K containing
such revised and/or corrected Computational Materials or ABS Term Sheets, as the
case may be and such other information as may be necessary in order to permit
the Company to fulfill its obligations under Section 5(b).
(g) Each Underwriter covenants that all Computational Materials and
ABS Term Sheets used by it shall contain the following legend or such other
legend as typically used by the Underwriter:
PROSPECTIVE INVESTORS ARE ADVISED TO READ CAREFULLY, AND SHOULD RELY
SOLELY ON, THE INFORMATION CONTAINED IN THE FINAL PROSPECTUS
SUPPLEMENT TO THE PROSPECTUS DATED OCTOBER 15, 1999 RELATING TO
CERTAIN CLASSES OF CERTIFICATES REFERRED TO ABOVE (THE
"CERTIFICATES") IN MAKING THEIR INVESTMENT DECISION.
THE INFORMATION CONTAINED HERE SHOULD BE REVIEWED ONLY IN
CONJUNCTION WITH A CAREFUL REVIEW OF SUCH PROSPECTUS SUPPLEMENT AND
PROSPECTUS. SUCH INFORMATION DOES NOT INCLUDE ANY INFORMATION
RELATING TO THE STRUCTURE OF THE CERTIFICATES AND DOES NOT INCLUDE
ALL RELEVANT INFORMATION RELATING TO THE UNDERLYING MORTGAGE LOANS.
PARTICULAR ATTENTION SHOULD BE PAID TO THE RISKS AND SPECIAL
CONSIDERATIONS ASSOCIATED WITH AN INVESTMENT IN THE CERTIFICATES
DESCRIBED IN
17
SUCH PROSPECTUS SUPPLEMENT AND PROSPECTUS. THE INFORMATION CONTAINED
IN THIS EXHIBIT SHOULD NOT BE VIEWED AS PROJECTIONS, FORECASTS,
PREDICTIONS OR OPINIONS WITH RESPECT TO VALUE.
ANY INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. FURTHERMORE, ANY INFORMATION CONTAINED HEREIN WILL BE
MORE FULLY DESCRIBED IN THE FINAL PROSPECTUS SUPPLEMENT AND
PROSPECTUS, AND SUCH INFORMATION CONTAINED HEREIN WILL BE FULLY
SUPERSEDED THEREBY. PRIOR TO MAKING ANY INVESTMENT DECISION, A
PROSPECTIVE INVESTOR SHOULD RECEIVE AND CAREFULLY REVIEW SUCH
PROSPECTUS SUPPLEMENT AND PROSPECTUS.
NOTHING HEREIN SHOULD BE CONSIDERED AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE CERTIFICATES.
(h) Each Underwriter covenants that all Collateral Term Sheets not
otherwise prepared by or on behalf of the Company (other than the initial
Collateral Term Sheet) used by it shall contain the following additional legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN ALL
PRIOR COLLATERAL TERM SHEETS, IF ANY."
(i) For purposes of this Agreement, the term "Underwriter
Information" means any written information furnished to the Company by either
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or any Preliminary Final Prospectus or Final Prospectus or such
portion, if any, of the information contained in any Furnished Term Sheets that
is not Pool Information or Prospectus Information; provided, however, that
information contained in Furnished Term Sheets that is not Pool Information or
Prospectus Information shall not constitute Underwriter Information to the
extent such information is inaccurate or misleading in any material respect as a
result of it being based on Pool Information or Prospectus Information that is
inaccurate or misleading in any material respect. "Pool Information" means the
information furnished to the Underwriters by the Company regarding the Mortgage
Loans and "Prospectus Information" means the information contained in (but not
incorporated by reference in) any Preliminary Final Prospectus or Final
Prospectus; provided, however, that if any information that would otherwise
constitute Pool Information or Prospectus Information is presented in any
Furnished Term Sheets in a way that is either inaccurate or misleading in any
material respect, such information shall not be Pool Information or Prospectus
Information.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment
18
for all Certificates if prior to such time (i) trading in securities generally
on the New York Stock Exchange or the American Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or New York
State authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis, the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Underwriters, impracticable to market the Offered Certificates
on the terms specified herein.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Offered Certificates. The provisions of
Section 7 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, hand
delivered or sent by facsimile transmission and confirmed to them at, in the
case of PaineWebber Incorporated, to it at 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxx, Managing Director,
fax number (000) 000-0000, in the case of Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Inc., to it at World Financial Center, New York, New York 10281, Attention:
Xxxxxxx XxXxxxxx, fax number (000) 000-0000; or, if sent to the Company, will be
mailed, hand delivered or sent by facsimile transmission and confirmed to it at
Xxxxxxx Xxxxx Mortgage Investors, Inc., World Financial Center, North Tower, New
York, New York 10281, Attention: Secretary, with a copy to the Treasurer.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall together constitute but one and
the same instrument.
[Signature Page Follows]
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Authorized Signatory
S-1
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
PAINEWEBBER INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
S-2
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
S-3
SCHEDULE I
Class Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx PaineWebber Incorporated
& Xxxxx Incorporated
---------- ----------------------------- ------------------------
Class A-1 $46,000,000 $51,600,000
Class A-2 $160,000,000 $177,847,000
Class B $15,700,000 $16,884,000
Class C $13,660,000 $13,000,000
Class D $4,000,000 $4,887,000
Class E $10,735,000 $10,000,000
Class F $3,406,000 $4,000,000
Class IO $280,000,000 $312,445,159
I-1
