1
EXHIBIT 1.1
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 199__
and similar Series of which
AMRESCO Commercial Mortgage Funding I Corporation is Seller
Underwriting Agreement
Xxxxxxx, Xxxxx & Co.,
as representative (the "Representative")
of the several Underwriters named in
the respective Pricing Agreements
hereinafter described
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
___________, 199__
Ladies and Gentlemen:
From time to time on one or more occasions AMRESCO Commercial
Mortgage Funding I Corporation, a Delaware corporation (the "Seller"), proposes
(a) to enter into a pooling and servicing agreement (each, a "Pooling and
Servicing Agreement"), in each case with a bank or trust company, as trustee
(the "Trustee"), a Servicer or Master Servicer and, if applicable, a Special
Servicer, and (b) to enter into a Pricing Agreement (each, a "Pricing
Agreement") in the form of Annex A hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to direct the Trustee pursuant to the applicable
Pooling and Servicing Agreement to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its Mortgage Pass-Through Certificates specified
in Schedule II to such Pricing Agreement (the "Designated Securities"). At
their date of issuance, each issuance of Designated Securities will represent
beneficial ownership interests in one or more trust funds (each, a "Trust
Fund") consisting of Mortgage Loans (as defined in the related Pooling and
Servicing Agreement) and other assets. Capitalized terms used but not defined
herein shall have the meanings given to them in the related Pooling and
Servicing Agreement or, if not defined therein, in the related Pricing
Agreement. The terms and conditions of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
pursuant to the related Pooling and Servicing Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom Xxxxxxx, Xxxxx
& Co. will act as the Representative. This Underwriting Agreement shall not be
construed as an obligation of the
2
Seller to sell, or as an obligation of any of the Underwriters to purchase, any
of the Designated Securities. The obligation of the Seller to issue and sell
or cause to be issued and sold any of the Designated Securities and the
obligation of any of the Underwriters to purchase any of the Designated
Securities shall be evidenced by the Pricing Agreement with respect to such
Designated Securities. Each Pricing Agreement shall specify the aggregate
principal amount of such Designated Securities, the initial public offering
price or prices of such Designated Securities (if a fixed price offering) , the
purchase price to the Underwriters of such Designated Securities, the names of
the Underwriters of such Designated Securities, the name of the Trustee with
respect to such Designated Securities and the principal amount of such
Designated Securities to be purchased by each Underwriter and shall set forth
the date, time and manner of delivery of such Designated Securities and of
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Pooling and Servicing Agreement and the registration statement
and prospectus with respect thereto) the terms of such Designated Securities.
The Pricing Agreement shall be in the form of an executed writing (which may be
in counterparts) and may evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligation of the Underwriters under this
Agreement and under each Pricing Agreement shall be several and not joint.
2. Each of the Seller and AMRESCO, Inc. (XXXXXXX) represents and
warrants to, and agrees with, each of the Underwriters that, with respect to
each issue of Designated Securities:
(a) The Seller meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"); a registration statement
(File No. 333-19591) on such form in respect of the Designated Securities,
together with one or more amendments thereto, has been filed with the
Securities and Exchange Commission (the "Commission") in the form
heretofore delivered or to be delivered to the Representative and,
exhibits to such registration statement and all documents incorporated by
reference in the prospectus contained therein, to the Representative for
each of the other Underwriters; such registration statement in such form
has been declared effective by the Commission; no stop order suspending
the effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission; and such registration statement meets the requirements set
forth in subsection (a)(1)(x) of, and complies in all material respects
with, Rule 415 under the Act (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule
424(a) under the Act being hereinafter called a "Preliminary Prospectus";
the various parts of such registration statement, including all exhibits
thereto and all documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective, each as amended at the time such
became effective, being hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Designated Securities, in the
form in which it has most recently been filed, or mailed for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall
2
3
be deemed to refer to and include all documents incorporated by reference
therein as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to the "Prospectus Supplement" shall be
deemed to refer to the Prospectus as amended or supplemented in relation
to the Designated Securities in the form in which it is first filed, or
mailed for filing, with the Commission pursuant to Rule 424 under the Act
following pricing of the Designated Securities, including any documents
incorporated by reference therein as of the date of such filing or
mailing);
(b) The Registration Statement and Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Seller by an Underwriter of Designated Securities through
the Representative expressly for use in the Prospectus Supplement;
(c) Each of the Seller and AMRESCO Inc., ("AMRESCO") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of its organization and has been duly
qualified or registered as a foreign corporation for the transaction of
business and is in good standing under the laws of all jurisdictions in
which it owns or leases property of a nature or transacts business of a
type that would require such qualifications or in which the failure to so
qualify or be in good standing could, individually or in the aggregate,
have a material adverse effect on the business, condition or properties of
the Seller or AMRESCO, as applicable;
(d) The Seller has all requisite power and authority (corporate and
other) and all requisite authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental or regulatory
officials and bodies to own its properties, to conduct its business as
described in the Registration Statement and the Prospectus and to execute,
deliver and perform this Agreement, except such as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution by the Underwriters of the Designated Securities; all such
authorizations, approvals, orders, licenses, certificates and permits are
in full force and effect and contain no unduly burdensome provisions; and,
except as otherwise set forth or contemplated in the Registration
Statement or the Prospectus, there are no legal or governmental
proceedings pending or, to the best of the Seller's knowledge, threatened,
that would result in a material modification, suspension or revocation
thereof;
(e) XXXXXXX has all requisite power and authority (corporate and
other) and all requisite authorizations, approvals, orders, licenses,
certificates and permits of and from all governmental or regulatory
officials and bodies to own its properties, to conduct
3
4
its business and to execute, deliver and perform its obligations under
Section 8 of this Agreement; all such authorizations, approvals, orders,
licenses, certificates and permits are in full force and effect and
contain no unduly burdensome provisions; and there are no legal or
governmental proceedings pending, or, to the best of XXXXXXX's knowledge,
threatened, that would result in a material modification, suspension or
revocation thereof;
(f) This Agreement has been duly authorized, executed and delivered
by the Seller and XXXXXXX;
(g) At the Time of Delivery (as defined in Section 4 hereof), the
related Pooling and Servicing Agreement will have been duly authorized,
executed and delivered and will constitute a valid and legally binding
obligation of the Seller, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general principles of equity;
(h) When the Designated Securities are issued, executed,
authenticated and delivered pursuant to this Agreement, the Pricing
Agreement and the related Pooling and Servicing Agreement, the Designated
Securities will have been duly authorized, executed, authenticated, issued
and delivered and will be entitled to the benefits of the related Pooling
and Servicing Agreement; and the Designated Securities and the related
Pooling and Servicing Agreement will conform to the descriptions thereof
in the Prospectus Supplement;
(i) The issue and sale of the Designated Securities, the compliance
by the Seller with all of the provisions of this Agreement and the Pricing
Agreement and the related Pooling and Servicing Agreement, and the
consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the
Seller is a party or by which the Seller is bound or to which any of the
property or assets of the Seller is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
the By-Laws of the Seller or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Seller, or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Designated Securities or the consummation by the Seller of the other
transactions contemplated by this Agreement or the Pricing Agreement or
the related Pooling and Servicing Agreement, except such as have been
obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(j) Compliance by XXXXXXX with Section 8 hereof will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any
4
5
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which AMRESCO is a party or by which AMRESCO is
bound or to which any of the property or assets of AMRESCO is subject, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of AMRESCO or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over AMRESCO, or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
entry by AMRESCO into this Agreement or the performance by AMRESCO of its
obligation under Section 8 of this Agreement, except such as have already
been obtained;
(k) Other than as set forth or contemplated in the Prospectus
Supplement, there are no legal or governmental proceedings pending and at
the Time of Delivery there will be no legal or governmental proceedings
pending to which the Seller is a party or of which any property of the
Seller is the subject which, if determined adversely to the Seller, would
individually or in the aggregate have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
properties or prospects of the Seller, and to the best of the Seller's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) There are no legal or governmental proceedings pending and at the
Time of Delivery there will be no legal or governmental proceedings
pending to which AMRESCO is a party or of which any property of AMRESCO is
the subject which, if determined adversely to AMRESCO, would individually
or in the aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, properties or
prospects of AMRESCO, and to the best of XXXXXXX's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(m) The Seller will at the Time of Delivery own the Mortgage Loans to
be sold and delivered to the Trustee under the related Pooling and
Servicing Agreement, free and clear of any lien, mortgage, pledge, charge,
security interest or other encumbrance; and, at the Time of Delivery, the
Seller will have full power and authority to sell and deliver the Mortgage
Loans to the Trustee under the related Pooling and Servicing Agreement and
at the Time of Delivery will have duly authorized such assignment and
delivery to the Trustee by all necessary action;
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and performance of this Agreement, the Pricing
Agreement, the related Pooling and Servicing Agreement and the Designated
Securities will have been paid at or prior to the Time of Delivery;
(o) At the Time of Delivery, the Mortgage Loans will have been duly
and validly assigned and delivered by the Seller to the Trustee under the
related Pooling and Servicing Agreement;
5
6
(p) The Trust Fund created by the related Pooling and Servicing
Agreement will not at the Time of Delivery be required to be registered
under the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
(q) The Seller is not and at the Time of Delivery will not be an
"investment company", as such term is defined in the Investment Company
Act.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representative of the release of
the Designated Securities, the several Underwriters propose to offer the
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus Supplement.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in definitive or book-entry form as
indicated in the Pricing Agreement, and in such authorized denominations and
registered in such names as the Representative may request upon at least
forty-eight hours' prior notice to the Seller, shall be delivered on behalf of
the Trustee to the Representative for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
wire transfer of immediately available funds to the Seller, or in such other
manner as may be specified in such Pricing Agreement, all at the place and time
and date specified in such Pricing Agreement or at such other place and time
and date as the Representative and the Seller may agree upon in writing, such
time and date being herein called the "Time of Delivery" for such Designated
Securities.
5. The Seller agrees with each of the Underwriters of any Designated
Securities:
(a) To make no further amendment or any supplement to the
Registration Statement, the Prospectus or the Prospectus Supplement after
the date of the Pricing Agreement relating to such Designated Securities
and prior to the Time of Delivery for such Designated Securities which
shall be disapproved by the Representative promptly after reasonable
notice thereof; to advise the Representative promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representative with copies thereof; for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Designated Securities, to advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or become effective or any
supplement to the Prospectus or any amended Prospectus has been filed or
mailed for filing, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus relating
to the Designated Securities, of the suspension of the qualification of
the Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatened initiation of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus
6
7
relating to the Designated Securities or suspending any such
qualification, to use promptly its best efforts to obtain the withdrawal
of any such order;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify such Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representative may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Designated Securities, provided that in connection therewith
neither the Trust Fund issuing such Designated Securities nor the Seller
shall be required to qualify to do business or to file a general consent
to service of process in any jurisdiction;
(c) To cause any Computational Materials and any Structural Term
Sheets (each as defined below) with respect to an issue of Designated
Securities that are delivered by any of the Underwriters to the Seller to
be filed with the Commission on a Form 8-K pursuant to Rule 13a-11 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
the business day immediately following the later of (i) the day on which
such Computational Materials and Structural Term Sheets are delivered to
counsel for the Seller by any Underwriter prior to 2 p.m. and (ii) the
date on which the related Pricing Agreement is executed and delivered. If
any Collateral Term Sheet (as defined below) is used by any of the
Underwriters, the Seller will cause each such Collateral Term Sheet with
respect to an issue of Designated Securities that is delivered by the
Underwriters to the Seller to be filed with the Commission on a Form 8-K
pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Seller by any Underwriter prior to 2 p.m.
"Computational Materials" shall have the meaning assigned to such term in
the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured
Asset Corporation and the related no-action letter dated May 27, 1994
issued by the Division of Corporation Finance of the Commission to the
Public Securities Association, the filing of which material is a condition
of the relief granted in such letter. "Structural Term Sheets" shall have
the meaning assigned to such term in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission
to the Public Securities Association (the "PSA Letter"), the filing of
which material is a condition of the relief granted in such letter.
"Collateral Term Sheets" shall have the meaning assigned to such term in
the PSA Letter, the filing of which material is a condition of the relief
granted in such letter; and
(d) To furnish the Underwriters with copies of the Prospectus and the
Prospectus Supplement in such quantities as the Representative may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Designated Securities and if at any such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any
7
8
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus in
order to comply with the Act, to notify the Representative and upon its
request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many copies as the
Representative may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
6. The Seller covenants and agrees with the several Underwriters of
any designated Securities that the Seller will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of counsel and accountants
for the Seller in connection with the registration of such Designated
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivery of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement Among Underwriters, this
Agreement, any Pricing Agreement, any Pooling and Servicing Agreement, any Blue
Sky and Legal Investment Memoranda and any other documents in connection with
the offering, purchase, sale and delivery of such Designated Securities; (iii)
all expenses in connection with the qualification of such Designated Securities
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and
Legal Investment Memoranda; (iv) any fees charged by securities rating services
for rating such Designated Securities; (v) the cost of preparing such
Designated Securities; (vi) the fees and expenses of any Trustee and of any
agent of such Trustee and the fees and disbursements of counsel for the Trustee
in connection with the related Pooling and Servicing Agreement and such
Designated Securities; (vii) the fees and expenses of counsel for Underwriters;
(viii) the out-of-pocket costs of the Representative; and (ix) all other costs
and expenses incident to the performance of the Seller's obligations hereunder
which are not otherwise specifically provided for in this Section.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representative, to the condition that all
representations and warranties and other statements of the Seller herein are,
at and as of the Time of Delivery for such Designated Securities, true and
correct, the condition that the Seller shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information from the Seller on the part of the Commission shall
have been complied with to the Representative's reasonable satisfaction;
8
9
(b) The related Pooling and Servicing Agreement and all of the other
agreements identified in such Pricing Agreement as "Related Agreements"
shall have been duly entered into by all of the respective parties;
(c) Counsel for the Underwriters shall have furnished to the
Representative such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the related Pooling and
Servicing Agreement, the Designated Securities, the Registration
Statement, the Prospectus Supplement and other related matters as the
Representative may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(d) Counsel for the Seller and AMRESCO satisfactory to the
Representative shall have furnished to the Representative their written
opinion (or, in the case of clause (ix) below, their letter), dated the
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representative, to the effect that:
(i) Each of the Seller and AMRESCO has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of its organization;
(ii) The Seller has all requisite corporate power to own its
properties, to conduct its business as described in the Registration
Statement, the Prospectus and the Prospectus Supplement and to
execute, deliver and perform this Agreement, the Pricing Agreement,
the related Pooling and Servicing Agreement and each of the Related
Agreements to which the Seller is a party;
(iii) AMRESCO has all requisite corporate power to own its
properties, to conduct its business and to execute, deliver and
perform its obligations under Section 8 of this Agreement;
(iv) To the best of such counsel's knowledge and other than as
set forth or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Seller is a party or of
which any property of the Seller is the subject which, if determined
adversely to the Seller, would individually or in the aggregate have
a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, properties or prospects of the Seller
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(v) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which AMRESCO is a party or of
which any property of AMRESCO is the subject which, if determined
adversely to AMRESCO, would individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, properties or prospects of AMRESCO and,
to the best of such counsel's knowledge, no such
9
10
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by each of the Seller and XXXXXXX ;
(vii) The related Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Seller and constitutes a
legal, valid and binding obligation of the Seller, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity (whether considered in
a proceeding in equity or at law);
(viii) The related Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust Fund created thereunder is not required to be
registered under the Investment Company Act;
(ix) The Designated Securities, when duly authorized, executed,
authenticated, issued and delivered by the Trustee in accordance with
the related Pooling and Servicing Agreement, will be validly issued
and outstanding and entitled to the benefits of the related Pooling
and Servicing Agreement; and the statements set forth under the
heading "Description of the Certificates" (or similar heading) in the
Prospectus Supplement, insofar as such statements purport to
summarize certain provisions of the Designated Securities and the
related Pooling and Servicing Agreement, provide a fair summary of
such provisions;
(x) The issue and sale of the Designated Securities and the
compliance by the Seller with all of the provisions of this
Agreement, the Pricing Agreement, the Designated Securities and the
related Pooling and Servicing Agreement, and the consummation of the
transactions herein and therein contemplated, do not conflict with or
result in a breach of any of the terms or provisions of, or
constitute a default under any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument known to
such counsel to which the Seller is a party, nor do such actions
result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Seller or any state or federal
statute applicable to the Seller or any order, rule or regulation
known to such counsel of any state or federal court or governmental
agency or body having jurisdiction over the Seller or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Designated Securities or the consummation by the Seller of the other
transactions contemplated by this Agreement or the Pricing Agreement
with respect to the Designated Securities, the Designated Securities
and the related Pooling and
10
11
Servicing Agreement, except (A) such as have been obtained under the
Act, (B) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities, real estate
syndication or Blue Sky laws in connection with the purchase and
distribution of the Designated Securities by the Underwriters and (C)
such recordations or filings as may be required or contemplated by
the related Pooling and Servicing Agreement;
(xi) The compliance by AMRESCO with Section 8 of this Agreement
does not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument known to such counsel to which AMRESCO is a party, nor do
such actions result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of AMRESCO or any state
or federal statute applicable to AMRESCO or any order, rule or
regulation known to such counsel of any state or federal court or
governmental agency or body having jurisdiction over AMRESCO or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for entry by AMRESCO into
this Agreement or the performance by AMRESCO of its obligations under
Article 8 of this Agreement, except such as already have been
obtained;
(xii) The Registration Statement and the Prospectus, as
supplemented by the Prospectus Supplement and any further amendments
and supplements thereto made by the Seller prior to the Time of
Delivery for the Designated Securities (other than the financial
statements, schedules and other financial and statistical data
therein, as to which such counsel need express no opinion) as of the
date it became effective, as of the date of the Prospectus Supplement
or as of the date of such later amendment or supplement, as the case
may be, appeared on their face to be appropriately responsive in all
material respects to the requirements of the Act and the rules and
regulations thereunder; on the basis of such counsel's participation
in the preparation of the Registration Statement and the Prospectus
(and any further amendment or supplement thereto made by the Seller
prior to the Time of Delivery) and in conferences with
representatives of the Seller, the Seller's independent public
accountants and the Underwriters at which the contents of the
Registration Statement and the Prospectus (and any such further
amendment or supplement thereto) were discussed and without passing
upon, assuring responsibility for or making any independent check or
verification of the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus
(or any such further amendment or supplement thereto) (other than as
set forth in clause (xi) of this Section 7(d)), nothing has come to
the attention of such counsel which causes them to believe that, as
of the effective date of the Registration Statement, the Registration
Statement (or, as of the date thereof, any further amendment thereto)
(other than the financial statements, schedules and other
11
12
financial and statistical data therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as
of the date of the Prospectus Supplement or as of the Time of
Delivery, the Prospectus (or any such further amendment or supplement
thereto) (other than the financial statements, schedules and other
financial and statistical data therein, as to which such counsel need
express no opinion) contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and such counsel do not
know of any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or described as required;
(xiii) The Seller is not required to register as an "investment
company" under, and as such term is defined in, the Investment
Company Act; and
(xiv) The statements set forth in the Prospectus Supplement
under the heading "ERISA Considerations", "Federal Income Tax
Consequences", "Certain Legal Affects of the Mortgage Loans" and
"Legal Investment" (insofar as they relate specifically to the
purchase, ownership and disposition of the Designated Securities), to
the extent that they constitute matters of law or legal conclusions
with respect to the federal law of the United States, have been
prepared or reviewed by such counsel and provide a fair summary of
such law or conclusions;
In rendering their opinion, such counsel may rely, to the extent deemed
proper and as stated therein, as to matters of fact on certificates of
responsible officers of the Seller and the Trustee and public officials;
(e) Counsel for the Servicer or Master Servicer satisfactory to the
Representative shall have furnished to the Representative their written
opinion as set forth in the related Pricing Agreement;
(f) Counsel for the Special Servicer satisfactory to the
Representative shall have furnished to the Representative their written
opinion as set forth in the related Pricing Agreement;
(g) Counsel for the Trustee satisfactory to the Representative shall
have furnished to the Representative their written opinion as set forth in
the related Pricing Agreement;
(h) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities, the
independent accountants
12
13
of the Seller or other accountants acceptable to the Representative shall
have furnished to the Representative a letter or letters, dated the date
of the Pricing Agreement, and a letter or letters, dated such Time of
Delivery, respectively, containing statements and information of the type
customarily included in accountants' "comfort letters" and "agreed upon
procedures letters" with respect to certain financial information
contained in the Registration Statement, the Prospectus and the Prospectus
Supplement, in each case as to such matters as the Representative may
reasonably request and in form and substance satisfactory to the
Representative;
(i) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
this clause (iii) in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(j) Each of the Seller and XXXXXXX shall have furnished or caused to
be furnished to the Representative at the Time of Delivery for the
Designated Securities certificates of its officers satisfactory to the
Representative as to the accuracy in all material respects of its
representations and warranties herein at and as of such Time of Delivery,
as to the performance of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in
Section 7(a) above and as to such other matters as the Representative may
reasonably request;
(k) The Servicer or Master Servicer shall have furnished to the
Representative a certificate signed by one or more of its officers
satisfactory to the Representative, dated the Time of Delivery, to the
effect that the representations and warranties of the Servicer or Master
Servicer, as applicable, in the Pooling and Servicing Agreement are true
and correct in all material respects on and as of the Time of Delivery
with the same effect as if made at the Time of Delivery;
(l) The Special Servicer shall have furnished to the Representative a
certificate signed by one or more of its officers satisfactory to the
Representative, dated the Time of Delivery, to the effect that the
representations and warranties of the Special Servicer in the Pooling and
Service Agreement are true and correct in all material respects on and as
of the Time of Delivery with the same effect as if made at the Time of
Delivery;
(m) The Representative shall have received evidence satisfactory to
it that the Designated Securities are rated in the rating category or
categories specified in the Pricing Agreement by the rating agency or
agencies specified in the Pricing Agreement;
13
14
(n) AMRESCO Capital Corporation ("ACC") shall have furnished to the
Representative a certificate signed by one or more of its officers
satisfactory to the Representative, dated the Time of Delivery, to the
effect that the representations and warranties made by ACC to the Seller
in the applicable Loan Sale Agreement are true and correct in all material
respects on and as of the Time of Delivery with the same effect as if made
at the Time of Delivery;
(o) Any additional conditions specified in the related Pricing
Agreement; and
(p) All opinions (including reliance letters addressed to the rating
agencies), certificates and other documents incident to, and all
proceedings in connection with the transactions contemplated by, this
Agreement, the Pricing Agreement and the related Pooling and Servicing
Agreement shall be satisfactory in form and substance to the
Representative and its special counsel. The Representative and its special
counsel shall have received copies of all documents and other information
as they may reasonably request, in form and substance satisfactory to the
Representative and its special counsel, with respect to such transactions
and the taking of all proceedings in connection therewith.
With respect to any issue of Designated Securities, for purposes of subsections
(b), (c), (d), (g), (k), (l) and (o) of this Section, the terms "Trustee" and
"Pooling and Servicing Agreement" shall be deemed to refer to the Pooling and
Servicing Agreement specified in the Pricing Agreement with respect to such
Designated Securities. All opinions of counsel contemplated by this Section
shall be addressed to the Underwriters. All closing items delivered to the
Representative shall be delivered in sufficient quantity for all of the
Underwriters.
8. (a) Each of the Seller and AMRESCO will jointly and severally
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented or any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim; provided, however, that the Seller and AMRESCO shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any such document in reliance upon and
in conformity with written information furnished to the Seller by any
Underwriter of Designated Securities through the Representative expressly for
use in the Prospectus Supplement.
14
15
(b) Each Underwriter will indemnify and hold harmless the
Seller against any losses, claims, damages or liabilities to which the Seller
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented or any
other prospectus relating to the Designated Securities or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any such document in
reliance upon and in conformity with written information furnished to the
Seller by such Underwriter through the Representative expressly for use
therein.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of the indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under such subsection for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence, (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
15
16
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Seller of the Designated Securities on
the one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or actions in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as it
is appropriate to reflect not only such relative benefits but also the relative
fault of the Seller of the Designated Securities on the one hand and the
Underwriters of such Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Seller of the
Designated Securities on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Seller bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Seller on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Seller, AMRESCO and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
underwriting discounts and commissions received by such Underwriter for the
Designated Securities underwritten by it and distributed to the public exceeds
the amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations and not
joint.
(e) The obligations of the Seller and AMRESCO under this
Section 8 shall be in addition to any liability which the Seller and AMRESCO
may otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the
Act.
16
17
9. (a) If any Underwriter shall default in its obligation to
purchase such of the Designated Securities as it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representative may in its discretion arrange for the Representative or another
or other parties to purchase such Designated Securities on terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representative does not arrange for the purchase of such Designated Securities,
then the Seller shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representative to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed period, the Representative
notifies the Seller that it has so arranged for the purchase of such Designated
Securities, or the Seller notifies the Representative that it has so arranged
for the purchase of such Designated Securities, the Representative or the
Seller shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may be necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Seller agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the
opinion of the Representative may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements made by the
Representative and the Seller for the purchase, of the Designated Securities of
a defaulting Underwriter or Underwriters as provided in subsection (a) above,
the aggregate principal amount of the Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Seller shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of the Designated
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to the Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of the Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements made by the
Representative and the Seller for the purchase of the Designated Securities of
a defaulting Underwriter or Underwriters as provided in subsection (a) above,
the aggregate principal amount of the Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the Seller
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase the Designated Securities of a
defaulting Underwriter or Underwriters, then the related Pricing Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Seller, except for the expenses to be borne by the Seller
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements
17
18
in Section 8 hereof, but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Seller and the several Underwriters, as
set forth in this Agreement and/or any Pricing Agreement or made by or on
behalf of any of them, respectively, pursuant to this Agreement and/or any
Pricing Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made in connection
with the issuance of Designated Securities by or on behalf of any Underwriter
or any controlling person of any Underwriter, or the Seller, or any officer or
director or controlling person of the Seller and shall survive delivery of and
payment for the Designated Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Seller shall not be under any liability to any Underwriter with
respect to the Designated Securities covered by such Pricing Agreement except
as provided in Section 6 and Section 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Trustee as
provided herein, the Seller will reimburse the Underwriters through the
Representative for all out-of-pocket expenses approved in writing by the
Representative, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Seller shall be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representative of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representative.
All statements, requests, notices and agreements hereunder shall be
in writing or by telegram if promptly confirmed in writing, and shall be
sufficient in all respects, if delivered or sent by registered mail, if to the
Underwriters, to the address of the representative set forth above; if to the
Seller, to the address of the Seller set forth in the Registration Statement,
Attention: President; if to the Trustee, to the address of the Trustee set
forth in the related Pooling and Servicing Agreement, with a copy to the
Seller.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters of the related Designated
Securities, the Seller and, to the extent provided in Section 8 and Section 10
hereof, the officers and directors of the Seller and each person who controls
the Seller or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign merely by reason of such purchase.
14. Time shall be of the essence of each Pricing Agreement.
18
19
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
19
20
If the foregoing is in accordance with your understanding of our
agreement, lease sign and return to the undersigned two counterparts hereof,
whereupon this letter and our acceptance shall represent a binding agreement
between the Seller and each of the several underwriters.
Very truly yours,
AMRESCO COMMERCIAL MORTGAGE FUNDING I
CORPORATION
By:
----------------------------------
Name:
Title:
AMRESCO, INC.
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
----------------------------------
Xxxxxxx, Xxxxx & Co.
as the Representative
20
21
ANNEX A
AMRESCO Commercial Mortgage Funding I Corporation
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 199[ ]-[ ]
Pricing Agreement
(to Underwriting Agreement dated ___________, 199__ between
AMRESCO Commercial Mortgage Funding I Corporation, AMRESCO, Inc. and Xxxxxxx,
Sachs & Co.,
as the Representative)
Xxxxxxx, Xxxxx & Co.,
as the Representative of the several
Underwriters
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[ ], 199[ ]
Ladies and Gentlemen:
This letter, when countersigned by you, will confirm that Xxxxxxx,
Xxxxx & Co. and __________________ (the "Underwriters") have agreed, subject to
the terms and provisions herein and of the captioned Underwriting Agreement
(the "Underwriting Agreement"), to purchase from the undersigned such Classes
of the captioned Series 199[ ]-[ ] Certificates (the "Certificates") as are
specified in Section 2(a) hereof and Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this
Agreement. This letter supplements and modifies the Underwriting Agreement
solely as it relates to the purchase and sale of the Designated Securities
described below. Capitalized terms used and not defined herein have the
meanings given them in the Underwriting Agreement.
Section 1. The Mortgage Pool: The Certificates shall evidence the
entire beneficial ownership interest in a mortgage pool (the "Mortgage Pool")
of commercial mortgage loans (the "Mortgage Loans") originated by [ ]
("[ ]") having the following characteristics as of [ ],
199[ ] (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool: $[ ] aggregate
principal balance as of the Cut-off Date, subject to an upward or downward
22
variance of up to [ ] %, the precise aggregate principal balance to be
determined by the Seller.
(b) The Mortgage Loans shall have such other characteristics as
described in the related Prospectus Supplement.
Section 2. The Designated Securities: The Designated Securities shall
be issued as follows:
(a) Classes: The Designated Securities shall be issued with the
following Class designations, pass-through rates and initial principal
balances (each, an "Initial Certificate Principal Amount"), subject in the
aggregate to the variance referred to in Section l (a) and, as to any
particular Class, to an upward or downward variance of up to[ ]%:
Initial Certificate
Principal Pass-Through Class Purchase
Class Amount Rate Price Percentage
----- ------ ---- ----------------
Class [ ] $ % %
Class [ ]
(b) [Beneficial interests in the Designated Services shall be held by
investors through the book-entry facilities of the Depository Trust
Company, as provided in the related Prospectus Supplement.]
(c) The Designated Securities shall have such other characteristics
as described in the related Prospectus Supplement.
Section 3. Purchase Price: The purchase price for each Class of the
Designated Securities shall be the Class Purchase Price Percentage therefor (as
set forth in Section 2(a) above) of the Initial Certificate Principal Amount
thereof plus accrued interest at a per annum rate equal to the respective
pass-through rate from and including the Cut-off Date up to, but not including,
the Time of Delivery.
Section 4. Delivery of Securities: Delivery of the Designated
Securities shall be made at the offices of [ ] on [ ], 199[ ] or at such
other place and time and date as the Representative and the Seller may agree
upon in writing, such time and date being herein called the "Time of Delivery"
for the Designated Securities.
Section 5. Required Ratings: The Designated Securities shall have
received ratings of at least "[ ]" from [ ] and "[ ]" from [ ].
Section 6. Tax Treatment: [A][Two separate] "real estate mortgage
investment conduit" (REMIC) elections will be made with respect to the Trust
Fund for U.S. federal income tax purposes.
2
23
Section 7. Additional Expenses:
Section 8. Additional Closing Conditions:
Section 9. Related Agreements: The "Related Agreements" shall be the
[ ] and the [ ]
3
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Underwriters and the Seller.
Very truly yours,
AMRESCO COMMERCIAL MORTGAGE FUNDING I
CORPORATION
By:
----------------------------------
Name:
Title:
AMRESCO, INC.
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
--------------------------------
Xxxxxxx, Xxxxx & Co.
as the Representative
4
25
SCHEDULE I
UNDERWRITERS
26
SCHEDULE II
DESIGNATED SECURITIES
