Exhibit 1.2
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1997-C1
UNDERWRITING AGREEMENT
as of March 20, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Capital I Inc., a Delaware corporation (the "Depositor"),
proposes to sell to Xxxxxx Xxxxxxx & Co. Incorporated (the "Underwriter") the
Commercial Mortgage Pass- Through Certificates identified in Schedule I hereto
(the "Certificates") pursuant to this Underwriting Agreement, dated as of March
20, 1997 (this "Agreement"), between the Depositor and the Underwriter. The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Depositor and consisting primarily of a pool
(the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans").
Certain Mortgage Loans (the "GMACCM Mortgage Loans") will be acquired by
the Depositor from GMAC Commercial Mortgage Corporation ("GMACCM") pursuant to
the mortgage loan purchase agreement, dated as of March 20, 1997 (the "GMACCM
Purchase Agreement"), between the Depositor and GMACCM. Certain other Mortgage
Loans (the "ContiTrade Mortgage Loans") will be acquired by the Depositor from
ContiTrade Services L.L.C. ("ContiTrade") pursuant to the mortgage loan purchase
agreement, dated as of March 20, 1997 (the "ContiTrade Purchase Agreement"),
between the Depositor and ContiTrade. The remaining Mortgage Loans (the "Xxxxxx
Xxxxxxx Mortgage Loans") will be acquired by the Depositor from Xxxxxx Xxxxxxx
Mortgage Capital Inc. ("Xxxxxx") pursuant to the mortgage loan purchase
agreement, dated as of March 20, 1997 (the "Xxxxxx Purchase Agreement"), between
the Depositor and Xxxxxx. GMACCM, ContiTrade and Xxxxxx collectively constitute
the "Mortgage Loan Sellers"; and the GMACCM Purchase Agreement, the ContiTrade
Purchase Agreement and the Xxxxxx Purchase Agreement collectively constitute the
"Purchase Agreements". Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 033-46723) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective and copies
of which have heretofore been delivered to the Underwriter. The Depositor
proposes to file with the Commission pursuant to Rule 424(b)
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under the 1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Certificates and the plan of distribution
thereof. Such registration statement, including the exhibits thereto, as amended
at the date hereof, is hereinafter called the "Registration Statement"; the
prospectus included in the Registration Statement, at the time the Registration
Statement, as amended, became effective, or as subsequently filed with the
Commission pursuant to Rule 424(b) under the 1933 Act, is hereinafter called the
"Basic Prospectus"; such form of supplement to the form of prospectus relating
to the 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 "Prospectus Supplement"; and the Basic
Prospectus and the Prospectus Supplement, together, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) is hereinafter called a "Preliminary Prospectus".
SECTION 1. Representations and Warranties.
(a) The Depositor represents and warrants to the Underwriter as follows:
(i) The Registration Statement has become effective, and the
Registration Statement as of the effective date thereof (the "Effective
Date"), and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of the
1933 Act and the rules and regulations thereunder (the "1933 Act
Regulations"); and the information in the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the information
in the Prospectus, as of the date of the Prospectus Supplement, did not,
and as of the Closing Date (as hereinafter defined) will not, contain an
untrue statement of a material fact and did not and will not omit to state
a material fact necessary in order to make the information therein, in the
light of the circumstances under which they were made, not misleading,
provided, however, that the Depositor makes no representations, warranties
or agreements as to (A) the information contained in the Prospectus or any
revision or amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Depositor by the
Underwriter specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto (the
"Underwriter Information"), or (B) any information contained in or omitted
from any Computational Materials or ABS Term Sheets (each as hereinafter
defined) required to be provided by the Underwriter to the Depositor
pursuant to Section 4, and provided, further, that the Depositor makes no
representations or warranties as to (X) any information contained in or
omitted from the portions of the Prospectus Supplement under the headings
"Summary--The Mortgage Pool", "Risk Factors--The Mortgage Loans" and
"Description of the Mortgage Pool" or contained in or omitted from Appendix
I and Appendix II to the Prospectus Supplement (the "Mortgage Loan Seller
Information"), (Y) any information contained in or omitted from the
portions of the Prospectus Supplement under the headings "Servicing of the
Mortgage Loans--GMAC Commercial Mortgage Corporation", or (Z) the accuracy
or completeness of any information contained in the Master Tape, and
provided, further, that the Depositor makes no representations or
warranties regarding untrue statements or omissions in the
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portions of the Prospectus Supplement under the headings "Yield
Considerations" and "Maturity Considerations" that arise out of or are
based upon untrue statements or omissions in the Mortgage Loan Seller
Information and/or the Master Tape. The "Master Tape" shall mean the
compilation of information and data regarding the Mortgage Loans covered by
the Agreed Upon Procedures Letter dated March 20, 1997 and rendered by
Deloitte & Touche, L.L.P. (a "hard copy" of which Master Tape was
initialled on behalf of the Depositor and each of the Mortgage Loan
Sellers).
(ii) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own, lease and operate its properties
and to conduct its business as now conducted by it, and to enter into and
perform its obligations under this Agreement and the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of March 1,
1997, among the Depositor, GMACCM as master servicer and as special
servicer, LaSalle National Bank as trustee and ABN Ambro Bank N.V. as
fiscal agent.
(iii) The Depositor is not in violation of its charter and by-laws or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Depositor is a party or by which it may be bound, or to which any of the
property or assets of the Depositor is subject. The execution, delivery and
performance of this Agreement and the Pooling and Servicing Agreement and
the consummation of the transactions contemplated herein and therein and
compliance by the Depositor with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Depositor pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it may be bound or to which any of the property or assets
of the Depositor is subject.
(iv) The Certificates have been duly authorized for issuance and sale
(or will have been so authorized prior to the issuance thereof) pursuant to
this Agreement and the Pooling and Servicing Agreement. When issued,
authenticated and delivered pursuant to the provisions of this Agreement
and of the Pooling and Servicing Agreement against payment of the
consideration therefor in accordance with this Agreement, the Certificates
will be duly and validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement, except as
enforcement thereof may be limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors' rights or by general
equity principles. The Certificates and the Pooling and Servicing Agreement
conform in all material respects to all statements relating thereto
contained in the Prospectus.
(v) No authorization, approval or consent of any court or governmental
authority or agency is necessary in connection with the offering, issuance
or sale of the Certificates hereunder, except such as have been, or as of
the Closing Date will have
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been, obtained or such as may otherwise be required under applicable state
securities laws in connection with the purchase and offer and sale of the
Certificates by the Underwriter and any recordation of the respective
assignments of the Mortgage Loans to the Trustee pursuant to the Pooling
and Servicing Agreement that have not yet been completed.
(vi) This Agreement has been, and as of the Closing Date the Pooling
and Servicing Agreement will be, duly authorized, executed and delivered by
the Depositor. This Agreement constitutes, and as of the Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and binding
agreement enforceable against the Depositor in accordance with its terms,
except as such enforceability may be limited by (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting
the enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in
equity or at law, and (C) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit
the enforceability of the provisions of this Agreement that purport or are
construed to provide indemnification from securities law liabilities.
(vii) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause
to be conveyed to the Trustee, good title to the Mortgage Loans being
transferred to the Trustee pursuant to the Pooling and Servicing Agreement,
free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively "Liens") granted by or
imposed upon the Depositor, (B) will not have assigned to any person any of
its right, title or interest in such Mortgage Loans or in the Pooling and
Servicing Agreement or the Certificates, and (C) will have the power and
authority to transfer such Mortgage Loans to the Trustee and to sell the
Certificates to the Underwriter. Upon execution and delivery of the Pooling
and Servicing Agreement by the Trustee, the Trustee will have acquired
ownership of all of the Depositor's right, title and interest in and to the
Mortgage Loans except to the extent disclosed in the Prospectus, and upon
delivery to the Underwriter of the Certificates pursuant hereto, the
Underwriter will have good title to the Certificates purchased by the
Underwriter, in each case free of Liens.
(viii) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause
the Depositor or the Trust Fund to be, subject to registration or
regulation as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act").
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale
of the Certificates to the Underwriter pursuant to this Agreement as a sale
of the interest in the Mortgage Loans evidenced by the Certificates. The
consideration received by the Depositor upon the sale of the Certificates
to the Underwriter will constitute reasonably equivalent value and fair
consideration for the Certificates. The Depositor will be solvent at all
relevant times prior to, and will not be rendered insolvent by, the sale of
the Certificates to the
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Underwriter. The Depositor is not selling the Certificates to the
Underwriter with any intent to hinder, delay or defraud any of the
creditors of the Depositor.
(x) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations
identified in Schedule I hereto (the "Rating Agencies").
(xi) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other
than income taxes) have been paid or will be paid at or prior to the
Closing Date.
(b) The Underwriter represents and warrants to the Depositor that, as of
the date hereof and as of the Closing Date, the Underwriter has complied with
all of its obligations hereunder.
SECTION 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Depositor shall sell to
the Underwriter, and the Underwriter shall purchase from the Depositor, at the
related purchase price set forth on Schedule I hereto, Certificates of each
class thereof having an actual or notional amount as set forth on Schedule I
hereto. There will be added to the purchase price of the Certificates an amount
equal to interest accrued thereon pursuant to the terms thereof from the Cut-off
Date to but excluding the Closing Date.
SECTION 3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 a.m. New York City time on March 26, 1997,
which date and time may be postponed by agreement between the Underwriter and
the Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor in immediately available Federal funds
wired to such bank as may be designated by the Depositor, against delivery of
the Certificates. Delivery of the Certificates will be made in book-entry form
through the facilities of The Depository Trust Company ("DTC"). Each class of
Certificates will be represented by one or more definitive global Certificates
to be deposited by or on behalf of the Depositor with DTC. The Certificates will
be made available for examination by the Underwriter not later than 10:00 a.m.
New York City time on the last business day prior to the Closing Date. The
closing of the transactions contemplated hereby shall be made at the offices of
Sidley & Austin, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Underwriter and the Depositor.
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SECTION 4. Offering by Underwriter.
(a) The Underwriter shall provide written information to the Depositor
expressly for use in the Preliminary Prospectus and the Prospectus (the
"Underwriter Information").
(b) It is understood that the Underwriter proposes to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon a Policy Statement 105, has not and will
not file an offering statement pursuant to Section 352-c of the General Business
Law of the State of New York with respect to the Certificates. The Underwriter
therefore agrees that sales of the Certificates made by the Underwriter in and
from the State of New York will be made only to institutional investors within
the meaning of Policy Statement 105.
(c) In connection with the offering of the Certificates, the Underwriter
may prepare and provide to prospective investors (i) computational materials
("Computational Materials") as defined in the No-Action Letter of May 20, 1994
issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in response to
the request of the Public Securities Association dated May 24, 1994, as well as
the PSA Letter referred to below and (ii) ABS term sheets ("ABS Term Sheets"),
each as defined in the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the "PSA Letter"), subject to
the following conditions:
(i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend substantially in the form attached
hereto as Exhibit A. The Depositor shall have the right to require
additional specific legends or notations to appear on any Computational
Materials or ABS Term Sheets, the right to require changes regarding the
use of terminology and the right to determine the types of information
appearing therein. Notwithstanding the foregoing, this subsection (i) will
be satisfied if all Computational Materials and ABS Term Sheets referred to
herein bear a legend in a form previously approved in writing by the
Depositor.
(ii) The Underwriter shall provide the Depositor with representative
forms of all Computational Materials and ABS Term Sheets prior to their
first use, to the extent such forms have not previously been approved by
the Depositor for use by the Underwriter. The Underwriter shall provide to
the Depositor, for filing on Form 8-K as provided in Section 5(j), copies
(in such format as required by the Depositor) of all Computational
Materials and ABS Term Sheets that are required to be filed with the
Commission pursuant to the No-Action Letters. The Underwriter may provide
copies of the foregoing in a consolidated or aggregated form including all
information required to be filed if filing in such format is permitted by
the No-Action Letters. All Computational Materials and ABS Term Sheets
described in this subsection (ii) must be provided to the Depositor not
later than 10:00 a.m. New York City time one business day before filing
thereof is required pursuant to the terms of this Agreement and in
accordance with the No-Action Letters. The Underwriter shall not provide to
any
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investor or prospective investor in the Certificates any Computational
Materials or ABS Term Sheets on or after the day on which Computational
Materials or ABS Term Sheets are required to be provided to the Depositor
pursuant to this subsection (ii) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Depositor in
accordance with this subsection (ii) for filing pursuant to Section 5(j)),
unless such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or prospective
investor.
(iii) All information included in the Computational Materials and ABS
Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided that the Computational Materials
and ABS Term Sheets may include information based on alternative
methodologies or assumptions if specified therein. If any Computational
Materials or ABS Term Sheets that are required to be filed were based on
assumptions with respect to the Mortgage Pool that differ from the final
mortgage pool information reflected in the Mortgage Loan Seller Information
and the Master Tape in any material respect or on Certificate structuring
terms that were revised in any material respect prior to the printing of
the Prospectus, the Underwriter shall prepare revised Computational
Materials or ABS Term Sheets, as the case may be, based on the Mortgage
Loan Seller Information and the Master Tape and structuring assumptions
used in the Prospectus, circulate such revised Computational Materials and
ABS Term Sheets to all recipients of the preliminary versions thereof that
indicated orally to the Underwriter they would purchase all or any portion
of the Certificates, and include such revised Computational Materials and
ABS Term Sheets (marked, "as revised") in the materials delivered to the
Depositor pursuant to subsection (ii) above.
(iv) The Depositor shall not be obligated to file any Computational
Materials or ABS Term Sheets that have been determined to contain any
material error or omission, provided that, at the request of the
Underwriter, the Depositor will file Computational Materials or ABS Term
Sheets that contain a material error or omission if clearly marked
"superseded by materials dated _____" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked, "material
previously dated _________, as corrected." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the 1933 Act, any Computational Materials or ABS Term
Sheets are determined, in the reasonable judgment of the Depositor or the
Underwriter, to contain a material error or omission, the Underwriter shall
prepare a corrected version of such Computational Materials or ABS Term
Sheets, shall circulate such corrected Computational Materials or ABS Term
Sheets to all recipients of the prior versions thereof that either
indicated orally to the Underwriter they would purchase all or any portion
of the Certificates, or actually purchased all or any portion thereof, and
shall deliver copies of such corrected Computational Materials or ABS Term
Sheets (marked, "as corrected") to the Depositor for filing with the
Commission in a subsequent Form 8-K submission (subject to the Depositor's
obtaining an accountant's comfort letter in respect of such corrected
Computational Materials and ABS Term Sheets, which the parties acknowledge
shall be at the expense of the Mortgage Loan Sellers under each of the
Purchase Agreements between the related Mortgage Loan Seller and the
Depositor. As of the date that the
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Underwriter disseminates any Computational Materials or ABS Term Sheets,
the Underwriter shall not have any knowledge or reason to believe that such
Computational Materials or ABS Term Sheets contained any material error or
omission and will promptly notify the Depositor of any such material error
or omission of which the Underwriter becomes aware.
(v) The Underwriter shall be deemed to have represented, as of the
Closing Date, that, except for Computational Materials and ABS Term Sheets
provided to the Depositor pursuant to subsection (ii) above, the
Underwriter did not provide any prospective investors with any information
in written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and the Underwriter shall provide the Depositor
with a certification to that effect on the Closing Date.
(vi) In the event of any delay in the delivery by the Underwriter to
the Depositor of all Computational Materials and ABS Term Sheets required
to be delivered in accordance with subsection (ii) above, or in the
delivery of the accountant's comfort letter in respect thereof pursuant to
Section 5(j), the Depositor shall have the right to delay the release of
the Prospectus to investors or to the Underwriter, to delay the Closing
Date and to take other appropriate actions in each case as necessary in
order to allow the Depositor to comply with its agreement set forth in
Section 5(j) to file the Computational Materials and ABS Term Sheets by the
time specified therein.
(d) The Underwriter further represents and warrants that, if and to the
extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in clause (c)
above have been satisfied with respect thereto.
SECTION 5. Covenants of the Depositor.
The Depositor covenants with the Underwriter as follows:
(a) The Depositor will give the Underwriter notice of its intention to
file or prepare (i) any amendment to the Registration Statement at any time
prior to the Closing Date or (ii) any amendment or supplement to the
Prospectus (including any revised prospectus that the Depositor proposes
for use by the Underwriter in connection with the offering of the
Certificates and that differs from the prospectus on file at the Commission
at the time the Registration Statement became effective, whether or not
such revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations) at any time during the period when a prospectus
relating to the Certificates is required to be delivered under the 1933 Act
and the Depositor, will furnish the Underwriter with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which the Underwriter shall
reasonably object.
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(b) The Depositor will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to
said rule.
(c) The Depositor will deliver to the Underwriter a copy of the
Registration Statement as originally filed and of each amendment thereto
prior to the date hereof (including exhibits filed therewith or
incorporated by reference therein).
(d) The Depositor will furnish to the Underwriter, from time to time
during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or
the respective applicable rules and regulations of the Commission
thereunder.
(e) If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the
Depositor will forthwith amend or supplement the Prospectus so that, as so
amended or supplemented, the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, and
the Depositor will furnish to the Underwriter a reasonable number of copies
of such amendment or supplement.
(f) The Depositor will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Underwriter may
reasonably designate and will maintain such qualification in effect so long
as required for the initial distribution of Certificates; provided,
however, that the Depositor shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified.
(g) The Depositor will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus under
"Use of Proceeds".
(h) If the transactions contemplated by this Agreement are
consummated, the Depositor will pay or cause to be paid all expenses
incident to the performance of the obligations of the Depositor under this
Agreement. Except as herein provided, the Underwriter shall be responsible
for the payment of all costs and expenses incurred by it, including,
without limitation, (i) the fees and disbursements of counsel of the
Underwriter and (ii) such additional costs arising out of any Computational
Materials and ABS Term Sheets prepared and/or distributed by the
Underwriter, in connection with the purchase and sale of the Certificates.
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(i) If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the 1933
Act, the Depositor receives notice that a stop order suspending the
effectiveness of the Registration Statement or preventing the offer and
sale of the Certificates is in effect, the Depositor will immediately
advise the Underwriter of the issuance of such stop order.
(j) The Depositor will file with the Commission within fifteen days of
the issuance of the Certificates a report on Form 8-K setting forth
specific information concerning the Certificates and the Mortgage Pool to
the extent that such information is not set forth in the Prospectus. The
Depositor will also file with the Commission a report on Form 8-K setting
forth all Computational Materials and ABS Term Sheets (as such terms are
defined herein) provided to the Depositor by the Underwriter and identified
by it as such within the time period allotted for such filing pursuant to
the No- Action Letters; provided, however, that prior to such filing of the
Computational Materials and ABS Term Sheets by the Depositor, the
Underwriter must comply with its obligations pursuant to Section 4 and the
Depositor must receive a letter from Deloitte & Touche LLP, certified
public accountants, satisfactory in form and substance to the Depositor, to
the effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Depositor, as a result
of which they have determined that the information included in the
Computational Materials and ABS Term Sheets (if any), provided by the
Underwriter to the Depositor for filing on Form 8-K pursuant to Section 4
and this subsection (j), and that the accountants have examined in
accordance with such agreed upon procedures, is accurate except as to such
matters that are not deemed by the Depositor to be material. The Depositor
shall file any corrected Computational Materials or ABS Term Sheets
described in Section 4(c)(iv) as soon as practicable following receipt
thereof.
SECTION 6. Conditions of Underwriter's Obligations.
The Underwriter's obligation to purchase the Certificates allocated to it
as set forth on Schedule I hereto shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Depositor contained herein as of the date hereof and as of the Closing Date, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Depositor's knowledge, threatened by the Commission and
the Prospectus Supplement shall have been filed or transmitted for filing
by means reasonably calculated to result in a filing with the Commission
pursuant to Rule 424(b) under the Act.
(b) On the Closing Date, the Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to
the Depositor, in form and substance satisfactory to the Underwriter,
substantially to the effect that:
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(A) The Depositor is a corporation in good standing under
the laws of the State of Delaware.
(B) The Depositor has corporate power and authority to enter
into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement.
(C) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the
Depositor. Upon due authorization, execution and delivery by the
other parties thereto, the Pooling and Servicing Agreement will
constitute a valid, legal and binding agreement of the Depositor,
enforceable against the Depositor in accordance with its terms,
except as enforceability may be limited by (1) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of the rights of
creditors generally, (2) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law and (3)
in the case of this Agreement, public policy considerations
underlying the securities laws to the extent that the same limit
the enforceability of the provisions of this Agreement that
purport or are construed to provide indemnification with respect
to securities law violations.
(D) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
(E) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and not withdrawn,
and no proceedings for that purpose have been initiated or
threatened by the Commission.
(F) At the time it became effective, the Registration
Statement (other than any financial or statistical information
included or incorporated by reference therein, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(G) To such counsel's knowledge and information, there are
no material contracts, indentures, or other documents of the
Depositor required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
- 12 -
(H) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended,
and the issuance and sale of the Certificates in the manner
contemplated by the Prospectus will not cause the Depositor or
the Trust Fund to be subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as
amended.
(I) No consent, approval, authorization, or order of any
State of New York or federal court or governmental agency or body
is required for the consummation by the Depositor of the
transactions contemplated herein, except (1) such as have been
obtained, (2) such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and sale of the
Certificates by the Underwriter, as to which no opinion need be
expressed and (3) any recordation of the assignments of the
Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing Agreement that has not yet been completed.
(J) Neither the sale of the Certificates to the Underwriter
pursuant to this Agreement, nor the consummation by the Depositor
of any other of the transactions contemplated by, or the
fulfillment by the Depositor of the terms of, this Agreement 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 Depositor or, to
the knowledge of such counsel, any material indenture or other
material agreement or material instrument to which the Depositor
is a party or by which it is bound, or any State of New York or
federal statute or regulation applicable to the Depositor 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 Depositor.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriter, reasonably acceptable to the Underwriter.
(iii) In giving their opinions required by foregoing subsections
(i) and (ii) of this Section, counsel to the Depositor and the
Underwriter, respectively, shall in each case additionally state that
nothing has come to such counsel's attention that would lead it to
believe that the Prospectus (other than any financial statements and
supporting schedules and statistical and/or accounting information
included therein, as to which no opinion need be rendered), as of the
date thereof or as of the Closing Date, contained an untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. Such statement shall be based
upon conferences and telephone conversations with representatives of
the parties hereto, the Mortgage Loan Sellers, the Master
- 13 -
Servicer, the Special Servicer, the Trustee and the Fiscal Agent and
such opinion may be qualified that, with limited exception, such
counsel will not have reviewed any loan documents.
Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or
authorized representatives of, the parties to this Agreement and the
Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion(s) may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the party on behalf of which
such opinion is being rendered. Such opinion(s) may be qualified as an
opinion only on the General Corporation Law of the State of Delaware,
the laws of the State of New York and the federal law of the United
States.
(c) On the Closing Date, the Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA counsel
to the Depositor (i) regarding the qualification of each of REMIC I, REMIC
II and REMIC III as a real estate mortgage investment conduit within the
meaning of Sections 860A through 860G of the Internal Revenue Code of 1986
and (ii) to the effect that the statements in the Basic Prospectus and the
Prospectus Supplement under the headings "Certain Federal Income Tax
Consequences" and "ERISA Considerations", to the extent that they
constitute matters of State of New York or federal law or legal conclusions
with respect thereto, while not purporting to discuss all possible
consequences of investment in the Certificates, are correct in all material
respects with respect to those consequences or matters that are discussed
therein. Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on certificates
or other documents furnished by officers and/or authorized representatives
of, the parties to this Agreement and the Pooling and Servicing Agreement
and on certificates furnished by public officials. Such opinion(s) may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the party
on behalf of which such opinion is being rendered. Such opinion(s) may be
qualified as an opinion only on the General Corporation Law of the State of
Delaware, the laws of the State of New York and the federal law of the
United States.
(d) The Depositor shall have delivered to the Underwriter a
certificate, dated the Closing Date, of the President, a Senior Vice
President or a Vice President of the Depositor to the effect that the
signer of such certificate has examined, or has relied upon an examination
conducted by appropriate persons authorized by him of, this Agreement, the
Prospectus, the Pooling and Servicing Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(i) the representations and warranties of the Depositor in this
Agreement are true and correct in all material respects;
- 14 -
(ii) the Depositor has, in all material respects, complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(iii) since March 20, 1997, there has been no material adverse
change in the financial condition of the Depositor; and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) The Depositor and the Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated the
Closing Date, in form and substance satisfactory to the Underwriter,
stating in effect that:
(i) they have performed certain specified procedures as a result
of which they have determined that the information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
under the headings "Summary--The Mortgage Pool," "Yield
Considerations", "Maturity Considerations", "Risk Factors - The
Mortgage Loans" and "Description of the Mortgage Pool" or contained in
or omitted from Appendix I, Appendix II and Appendix III to the
Prospectus Supplement, agrees with the data sheet or computer tape
prepared by or on behalf of each Mortgage Loan Seller, unless
otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and
found such data and information to be in agreement, unless otherwise
noted in such letter.
(f) The Underwriter shall have received the certification specified in
Section 4(c)(v) and the accountants' letters specified in Section 5(j).
(g) The Underwriter shall have received, with respect to each of the
Master Servicer, the Special Servicer, the Fiscal Agent and the Trustee, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling
and Servicing Agreement by such party and, subject to the same limitations
as set forth in Section 6(b)(i)(c), the enforceability of the Pooling and
Servicing Agreement against such party. Such opinion may express its
reliance as to factual matters on representations and warranties made by,
and on certificates or other documents furnished by officers and/or
authorized representatives of parties to, this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials.
Such opinion may assume the due authorization, execution and delivery of
the instruments and documents referred to therein by the parties thereto
other than the party on behalf of which such opinion is being rendered.
Such opinion may be qualified
- 15 -
as an opinion only on the General Corporation Law of the State of Delaware
(if relevant), the laws of each state in which the writer of the opinion is
admitted to practice law and the federal law of the United States.
(h) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting
the business or properties of the Depositor which the Underwriter
concludes, in the reasonable judgment of the Underwriter after consultation
with the Depositor, materially impairs the investment quality of the
Certificates so as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Certificates as contemplated by
the Prospectus.
(i) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been
rescinded.
SECTION 7. Indemnification.
(a) The Depositor shall indemnify and hold harmless the Underwriter, its
directors and officers and each person, if any, who controls the Underwriter
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), from and against
any and all expenses, losses, claims, damages and other liabilities (including
without limitation the reasonable costs of investigation and legal defense) (the
"Liabilities") caused by any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus or any omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided that,
insofar as the Liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission with respect to any information in the
Prospectus as to which the Underwriter has agreed to indemnify the Depositor
pursuant to Section 7(b), the Depositor shall have no obligation to so indemnify
and hold harmless; and provided, further, that the Depositor shall have no
obligation to so indemnify and hold harmless to the extent that the Liabilities
arise out of or are based upon (i) an untrue statement or omission or an alleged
untrue statement or omission with respect to (A) the Mortgage Loan Seller
Information or any other factual information contained in the Prospectus
regarding the Mortgage Loans or (B) information in the Prospectus Supplement
under the heading "Servicing of the Mortgage Loans--GMAC Commercial Mortgage
Corporation" or (ii) an untrue statement or omission in the Master Tape.
(b) The Underwriter shall indemnify and hold harmless the Depositor, its
directors and each person, if any, who controls the Depositor within the meaning
of either Section 15 or Section 20 of the 1933 Act or Section 20 of the 1934 Act
against any and all Liabilities as incurred, but only with respect to (i) untrue
statements or alleged untrue statements, or omissions or alleged omissions to
state a material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in the Underwriter
Information relating to the Underwriter provided by the Underwriter to the
Depositor expressly for inclusion in the Registration Statement (or any
amendment thereto) or any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) and (ii) untrue statements or alleged untrue
statements in the Computational Materials or ABS Term Sheets delivered to
purchasers
- 16 -
of the Certificates by the Underwriter, to the extent that such Computation
Materials and ABS Terms Sheets were prepared by the Underwriter and incorporated
by reference into the Registration Statement or the Prospectus as a result of
any filing pursuant to Section 5(j), except to the extent that such losses,
claims, damages or other liabilities arise from factual errors in the Mortgage
Loan Seller Information and/or the Master Tape.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this Agreement. If any action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party may participate at its own
expense in the defense of any such action. To the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from the indemnified party, the indemnifying party may elect to
assume the defense thereof, with counsel satisfactory to such indemnified party.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Unless it shall assume the defense of any proceeding, an indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent. However, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding that
have been asserted against the indemnified party in such proceeding by the other
parties to such settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party under subsection (a) or (b) on grounds of
public policy or otherwise, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Depositor on the one hand and the Underwriter on the other from the offer
and sale of the Certificates pursuant hereto or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and of the
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages
- 17 -
or other liabilities, as well as any other relevant equitable considerations.
The relative fault of the Depositor on the one hand and of the Underwriter on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Depositor or by the Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(e) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or other liabilities referred to in this
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment. Notwithstanding the provisions of this subsection (e), the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Certificates purchased by the Underwriter and
distributed to the public by the Underwriter exceeds the amount of damages that
the 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 remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this Section 7
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, the
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or the Underwriter, and (iii) acceptance of and
payment for any of the Certificates.
SECTION 8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or any controlling person
in respect of the Underwriter, and shall survive delivery of the Certificates to
the Underwriter.
SECTION 9. RESERVED.
SECTION 10. Termination of Agreement.
(a) The Underwriter may terminate its obligations under this Agreement, by
notice to the Depositor, at any time at or prior to the Closing Date if the sale
of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the
- 18 -
Depositor to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Depositor shall be unable to perform its
obligations under this Agreement.
(b) The Underwriter may terminate its obligations under this Agreement in
the absolute discretion of the Underwriter, by notice given to the Depositor, if
(A) after the execution and delivery of this Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Depositor shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or State of New York authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriter, is
material and adverse and (B) in the case of any of the events specified in
clauses (A)(i) through (iv) above, such event singly or together with any other
such event, makes it, in the judgment of the Underwriter, impracticable to
market the Certificates on the terms and in the manner contemplated in the
Prospectus.
[(c) If the Underwriter terminates its obligations under this Agreement in
accordance with Section 10(a), the Depositor shall reimburse the Underwriter for
all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by the
Underwriter in connection with the proposed purchase and sale of the
Certificates.
SECTION 11. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to the Underwriter
shall be directed to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxx; to the Depositor shall be directed
to Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxx, with a copy to the treasurer and the general
counsel; and as to any party, to such other address as may hereafter be
furnished by such party to the others in writing.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter and the Depositor and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person or entity, other than the Underwriter and the Depositor and their
respective successors and the controlling persons and officers and directors
referred to in Sections 7 and 8 and their respective successors, heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
- 19 -
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
SECTION 14. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such amendment, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of duplicate originals, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
- 20 -
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Depositor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriter and the Depositor in accordance with its terms.
Very truly yours,
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx Xxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
- 21 -
SCHEDULE I
Underwriting Agreement, dated as of March 20, 1997.
Cut-off Date: March 1, 1997
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 46723 filed by Xxxxxx Xxxxxxx Capital, Inc. on Form
S-3 and declared effective by the Commission.
Certificates:
Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 1997-C1, Class IO-1, Class IO-2, Class A-1A, Class A-1B, Class A-1C,
Class A-2, Class B, Class C, Class D and Class E
Initial Aggregate
Principal (or, in the case Initial
Class of Class IO-1 and IO-2, Notional) Pass-Through Purchase
Designation Amount of Class (1) Rate Price(2) Rating(3)
----------- ------------------- ---- -------- ---------
A-1A $ 61,700,000 6.85% 100.1112% XXX/Xxx
X-0X $193,000,000 7.46% 101.5493% AAA/Aaa
A-1C $139,496,000 7.63% 101.8396% AAA/Aaa
A-2 $ 38,248,484 5.92% 99.9619% AAA/Aaa
IO-1 $601,807,030 1.42% 7.9085% AAA/Aaa
IO-2 $ 38,248,484 2.25% 5.0312% AAA/Aaa
B $ 51,252,000 7.69% 101.9637% AA-/Aa2
C $ 38,439,000 7.79% 101.9790% A-/A2
D $ 35,236,000 7.85% 101.0371% BBB-/Baa2
E $ 6,406,000 7.85% 98.7150% NR/Baa3
----------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates will include accrued
interest at the initial Pass-Through Rate therefor on the aggregate stated
or notional amount, as applicable, thereof to be purchased from the Cut-off
Date to but not including the Closing Date.
(3) By each of Duff & Xxxxxx Credit Rating Co. and Xxxxx'x Investors Services,
Inc. ("Xxxxx'x"), except that the Class E Certificates will be rated solely
by Xxxxx'x.
