▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
A DELAWARE CORPORATION
UNDERWRITING AGREEMENT
$571,781,000
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1998-C1-CTL
MARCH 25, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
(a Delaware corporation)
Mortgage Pass-Through Certificates, Series 1998-C1-CTL
UNDERWRITING AGREEMENT
March 25, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
DAIWA SECURITIES AMERICA INC.
Financial Square, ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., a Delaware corporation (the
"Company"), confirms its agreement with ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated ("▇▇▇▇
▇▇▇▇▇") and Daiwa Securities America Inc. ("Daiwa"; Daiwa, ▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇, each an "Underwriter" and, collectively, the "Underwriters"),
with respect to the issue and sale by the Company and the purchase by each
Underwriter of the initial certificate balance set forth in Schedule I hereto of
$571,781,000 aggregate initial certificate balance of the Company's Mortgage
Pass-Through Certificates, Series 1998-C1-CTL (the "Certificates"). The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Company and consisting primarily of a
segregated pool (the "Mortgage Pool") of commercial mortgage loans (the
"Mortgage Loans") to be purchased from Daiwa Finance Corp. (the "Mortgage Loan
Seller"). The Certificates are to be issued pursuant to a pooling and servicing
agreement, dated as of March 1, 1998 (the "Pooling and Servicing Agreement"),
among the Company as depositor, Norwest Bank Minnesota, National Association as
trustee (the "Trustee"), GMAC Commercial Mortgage Corporation, as master
servicer and special servicer (the "Master Servicer" and the "Special Servicer",
respectively, and, together, the "Servicers"). Certificates issued in book-entry
form will be issued to Cede & Co. as nominee of The Depository Trust Company
("DTC") pursuant to a letter agreement, to be dated as of the Closing Time (as
defined in Section 2(b)) (the "DTC Agreement"), among the Trust Fund, the
Trustee and DTC.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-38073) relating
to the Certificates, and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"), and
has filed, and proposes to file, such amendments thereto as may have been
required to the date hereof and as shall be required to the effective date
thereof pursuant to the 1933 Act and the rules of the Commission thereunder (the
"1933 Act Regulations"). Such registration statement, as amended at the time
when each becomes effective under the 1933 Act and at the Closing Time defined
below, is referred to herein as the "Registration Statement." The Company
proposes to file with the Commission pursuant to Rule 424(b)(5) under the 1933
Regulations a supplement (the "Prospectus Supplement") to the form of prospectus
(as may be amended in connection with such Prospectus Supplement, the "Basic
Prospectus"; the Basic Prospectus, together with the Prospectus Supplement, the
"Prospectus"). Any preliminary form of the Prospectus that has heretofore been
filed pursuant to Rule 424(b) or prior to the effective date of the Registration
Statement, pursuant to Rule 402(a) or 424(a) is hereinafter called a
"preliminary prospectus."
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
Capitalized terms used but not defined herein shall have the meanings given
to them in the Pooling and Servicing Agreement.
1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and as
of the Closing Time referred to in Section 2(b) hereof, and agrees with
each Underwriter as follows:
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied
with. At the time the Registration Statement became effective and at
the Closing Time, the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act of 1939, as amended (the "1939 Act") and the
rules and regulations of the Commission thereunder (the "1939 Act
Regulations"), and did not and will not contain any 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. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by the Underwriters
expressly for use in the Registration Statement or Prospectus.
The Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations and the Prospectus
delivered to each Underwriter for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus
was issued and at the Closing Time, did not and
will not 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.
(iii) Independent Accountants. The accountants who certified the
financial information included in the Registration Statement are
independent certified public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iv) Financial Information. The financial information included in
the Registration Statement and the Prospectus present fairly the
financial position of the Company.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the financial condition, earnings,
business affairs or business prospects of the Company (a "Material
Adverse Effect"), whether or not arising in the ordinary course of
business and (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which
are material with respect to the Company.
(vi) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(vii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(viii) Authorization of Other Agreements. Each of the Pooling and
Servicing Agreement, the Mortgage Loan Purchase and Sale Agreement,
dated as of March 1, 1998, between the Company and the Mortgage Loan
Seller (the "MLPSA") and this Agreement has been duly authorized and,
at the Closing Time, will have been duly executed and delivered by the
Company and will each constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, subject
(i) to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (ii) as to enforceability,
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (iii) as to
enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(ix) Description of the Pooling and Servicing Agreement. The
description of the Pooling and Servicing Agreement in the Prospectus
conforms in all material respects with the terms thereof. At the
Closing Time, the Pooling and Servicing Agreement will conform in all
material respects to the description thereof contained in the
Prospectus.
(x) Description of the Certificates. At the Closing Time, the
Certificates will have been duly and validly authorized and executed
by the Trustee, and, assuming authentication as specified in the
Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement. The description of the Certificates in the Prospectus
conforms or will conform in all material respects with the terms
thereof and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xi) Absence of Defaults and Conflicts. The Company is not in
violation of its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and any other
agreement or instrument entered into or issued or to be entered into
or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and
the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the
Certificates) and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of,
or default or a Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, the Agreements and
Instruments except for such conflicts, breaches or defaults or liens,
charges or encumbrances that, singly or
in the aggregate, would not result in a Material Adverse Effect, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its assets or properties. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or its affiliates.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company exists or, to the knowledge of the Company,
is imminent.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company threatened, against or affecting the
Company which would reasonably be expected to result in a Material
Adverse Effect, or which would reasonably be expected to materially
and adversely affect the properties or assets of the Company or the
consummation of this Agreement or the performance by the Company or
its obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company is a party or of which
any of its property or assets is the subject which are not described
in the Registration Statement, including ordinary routine litigation
incidental to the business, would not reasonably be expected to result
in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed
as required.
(xv) Possession of Intellectual Property. The Company owns or
possesses, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by it, and the Company has not received any notice or is not
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Certificates hereunder or the consummation of the
transactions contemplated by this Agreement, except such as may be
required under the 1933 Act Regulations, the 1939 Act Regulations or
state securities or blue sky laws.
(xvii) Possession of Licenses and Permits. The Company possesses
such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company is
in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or
in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and the Company has not received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xvii) Tax Returns. The Company has filed all federal, state,
local and foreign tax returns that are required to be filed or has
duly requested extensions thereof and has paid all taxes required to
be paid by it and any related assessments, fines or penalties, except
for any such tax, assessment, fine or penalty that is being contested
in good faith and by appropriate proceedings; and adequate charges,
accruals and reserves have been provided for in respect of all
federal, state, local and foreign taxes for all periods as to which
the tax liability of the Company has not been finally determined or
remains open to examination by applicable taxing authorities.
(xviii) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section
517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
(xx) Investment Company Act. The Company is not and upon the
issuance and sale of the Certificates as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act"). The
Trust Fund is not required to be registered as an "investment company"
under the 1940 Act.
(xxi) Environmental Laws. Except as described in the Registration
Statement and except such matters as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) the Company is not
in violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance
with its requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company relating
to Hazardous Materials or Environmental Laws.
(xxii) No Liens. At the time of the execution and delivery of the
Pooling and Servicing Agreement, the Company (A) will convey to the
Trustee, or cause to be conveyed to the Trustee, all of its right,
title and interest in and to the Mortgage Loans that are transferred
by it to the Trustee, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") granted by or imposed upon the Company, (B)
will not have assigned to any person any of its
right, title or interest in such Mortgage Loans or in the Pooling and
Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer such Mortgage Loans to the Trustee and to
sell the Certificates to the Underwriters, and upon delivery to the
Underwriters of the Certificates, each Underwriter will have good
title to the Certificates purchased by such Underwriter, in each case
free of Liens.
(xxiii) Sale of Mortgage Loans. Under generally accepted
accounting principles ("GAAP") and for federal income tax purposes,
the Company will report the transfer of the Mortgage Loans to the
Trustee in exchange for the Certificates and the sale of the
Certificates to the Underwriters pursuant to this Agreement as a sale
of the interests in the Mortgage Loans evidenced by the Certificates.
The consideration received by the Company upon the sale of the
Certificates to the Underwriters will constitute reasonably equivalent
value and fair consideration for the Certificates. The Company will be
solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Certificates to the Underwriters. The
Company is not selling the Certificates to the Underwriters with any
intent to hinder, delay or defraud any of the creditors of the
Company.
(xxiv) Ratings. At the Closing Time, 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").
(xxv) Taxes. Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement, the MLPSA, the Pooling and Servicing Agreement and the
Certificates payable by the Company (other than income taxes) have
been paid or will be paid at or prior to the Closing Time.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company to the Underwriters to
the matters covered thereby.
2. Sale and Delivery to the Underwriters; Closing.
(a) Certificates. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees to purchase from
the Company, at the purchase price set forth in Schedule I, the aggregate
initial certificate balance of Certificates set forth in Schedule I opposite the
name of such Underwriter.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Certificates shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, One Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the Underwriters and the
Company, at 10:00 A.M. on or about March 31, 1998 or such other time not later
than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
each Underwriter for the account of such Underwriter of certificates for the
Certificates to be purchased by them. The certificates representing the
Certificates shall be registered in the name of Cede & Co., pursuant to the DTC
Agreement and shall be made available for examination and packaging by the
Underwriters in the City of New York not later than 10:00 A.M. on the last
business day prior to the Closing Time.
(c) Denominations; Registration. Certificates for the Certificates shall be
in such denominations and registered in such names as the Underwriters may
request in writing at least one full business day before the Closing Time.
3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company will notify each Underwriter immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Certificates for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
in the event that it was not, it will promptly file such prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any such order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Filing of Amendments. The Company will give each Underwriter
notice of its intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or revision to either
the Basic Prospectus or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise (other than reports to be filed pursuant to
the 1934 Act), will furnish each Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which
either Underwriter or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to each Underwriter and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to each Underwriter without
charge, a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to each Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus,
if any, as each such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as each such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to each
Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Certificates as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with
sales of the Certificates, any event shall occur or condition shall exist
as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or
amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Company will furnish to each Underwriter
such number of copies of such amendment or supplement as each such
Underwriter may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with each Underwriter, to qualify the Certificates for offering
and sale under the applicable securities laws of such states and other
jurisdictions as each such Underwriter may designate and to maintain such
qualifications in effect for a period of not less than one year from the
later of the effective date of the Registration Statement; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the Certificates have been so qualified, the Company will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement.
The Company will also supply each Underwriter with such information as is
necessary for the determination of the legality of the Certificates for
investment under the laws of such jurisdictions as each such Underwriter
may request.
(g) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(h) Rating of Certificates. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Service, a division of
The McGraw Hill Companies, Inc. ("S&P"), and ▇▇▇▇▇'▇ Investors Service,
Inc. ("Moody's") to provide their respective credit ratings of the
Certificates as described in the Prospectus.
(i) DTC. The Company will cooperate with each Underwriter and use its
best efforts to permit the Certificates to be eligible for clearance and
settlement through the facilities of DTC.
(j) Restriction on Sale of Securities. During the period from the date
hereof to the Closing Time, the Company will not, without the prior written
consent of the Underwriters, directly or indirectly, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
any other mortgage-related securities of the Company or securities of the
Company that are convertible into, or exchangeable for, the Certificates or
such other securities.
4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Registration Statement
(including any schedules or exhibits and any document incorporated therein
by reference) originally filed and of each amendment or supplement thereto,
(ii) the preparation, printing and delivery to each Underwriter of this
Agreement, the Pooling and Servicing Agreement and such other documents as
may be required in connection with the offering, purchase, sale and
delivery of the Certificates, (iii) the preparation, issuance and delivery
of the certificates for the Certificates to each Underwriter, including any
charges of DTC in connection therewith, (iv) the fees and disbursements of
the Company's accountants and other advisors, (v) the qualification of the
Certificates under securities laws in accordance with the provisions of
Section 3(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to each Underwriter of
copies of each preliminary prospectus and of the Prospectus and any
amendments or supplements thereto, (vii) the fees and expenses of the
Trustee, the Master Servicer and the Special Servicer, including the fees
and disbursements of counsel for the Trustee, the Master Servicer and the
Special Servicer in connection with the Pooling and Servicing Agreement and
the Certificates and (viii) any fees payable in connection with the rating
of the Certificates.
(b) Termination of Agreement. If this Agreement is terminated by any
Underwriter in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse such Underwriter for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for such Underwriter.
5. Conditions of Underwriters' Obligations. The obligations of each
Underwriter hereunder are subject to the accuracy of the representations and
warranties of the Company contained in Section 1 hereof or in certificates of
any officer of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. At the Closing Time no
stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission
for additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters.
(b) Opinion of Counsel for the Master Servicer. At the Closing Time,
each Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Master Servicer, in form and substance
satisfactory to counsel for the Underwriters.
(c) Opinion of Counsel for the Special Servicer. At the Closing Time,
each Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Special Servicer, in form and substance
satisfactory to counsel for the Underwriters.
(d) Opinion of Counsel for the Underwriters. At the Closing Time, each
Underwriter shall have received the favorable opinions, dated as of the
Closing Time, of counsel for the Underwriters. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Underwriters and certificates of public officials.
(e) Officers' Certificate of the Company. At the Closing Time, there
shall not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectus, any material adverse
change in the financial condition, earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, and each Underwriter shall have received a certificate of the
President or a Vice President of the Company dated as of the Closing Time,
to the effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as
of the Closing Time, (iii) each has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(f) Officers' Certificates of the Master Servicer. At the Closing
Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the financial condition, earnings, business
affairs or business prospects of the Master Servicer and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and each
Underwriter shall have received a certificate of the President or a Vice
President of the Master Servicer, dated as of the Closing Time, to that
effect.
(g) Officers' Certificate of the Special Servicer. At the Closing
Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the financial condition, earnings, business
affairs or business prospects of the Special Servicer and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and each Underwriter shall have received a certificate of the
President or a Vice President of the Special Servicer, dated as of the
Closing Time, to that effect.
(h) Accountant's Comfort Letter. At or prior to the time of the
execution of this Agreement, each Underwriter shall have received from
Deloitte & Touche LLP ("Deloitte") a letter dated such date, in form and
substance satisfactory to each Underwriter, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to each Underwriter with respect to certain financial information
contained in the Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At the Closing Time, each Underwriter
shall have received from Deloitte a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section, except that the
specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(j) Maintenance of Rating. At the Closing Time, the Certificates shall
have received the ratings set forth in Schedule I and the Company shall
have delivered to each Underwriter a letter dated the Closing Time, from
each such rating agency, or other evidence satisfactory to each
Underwriter, confirming that the Certificates have such ratings.
(k) Opinion of Counsel for Trustee. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Trustee, in form and substance
satisfactory to counsel for the Underwriters.
(l) Opinion of Tax and ERISA Counsel. At the Closing Time, each
Underwriter shall have received a favorable opinion, dated as of the
Closing Time, of tax and ERISA counsel to the Company with respect to the
Certificates (i) regarding the qualification of each of REMIC I, REMIC II
and REMIC III (as each such term is defined in the Pooling and Servicing
Agreement) as a real estate mortgage investment conduit within the meaning
of Sections 860A through 86OG of the Internal Revenue Code of 1986, as
amended, and (ii) to the effect that the statements in the Basic Prospectus
and the Prospectus Supplement under the headings
"Material 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.
(m) Opinion of Counsel for the Company. At the Closing Time, each
Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters.
(n) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Certificates as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Certificates as herein contemplated shall be satisfactory in form and
substance to each Underwriter and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by any Underwriter by notice to the
Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive
any such termination and remain in full force and effect.
6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter, as the case may be, within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Computational
Materials, ABS Term Sheets or Collateral Term Sheets distributed by such
Underwriter, unless such untrue statement or alleged untrue statement of a
material fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter to the Company expressly for use
in the Registration Statement, the Prospectus, the Computational Materials,
ABS Term Sheets or Collateral Term Sheets and the untrue statement or
alleged untrue statement did not derive from an inaccuracy in the
Seller-Provided Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i), (ii)
or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of the Company, Directors and Officers. Each
Underwriter agrees to indemnify and hold harmless the Company and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows (i) against any and all loss,
liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), and (ii) against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or alleged untrue
statements made in the Computational Materials, Collateral Term Sheets or ABS
Term Sheets to the extent that such untrue statement or alleged untrue statement
of a material fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter expressly for use in the Computational
Materials, the ABS Term Sheets or the Collateral Term Sheets and the untrue
statements or alleged untrue statements did not derive from an inaccuracy in the
Seller-Provided Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets.
For purposes of this Agreement, "Computational Materials" shall have the
meaning given such term in the No-Action Letter of May 20, 1994 issued by the
Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made applicable to
other issuers and underwriters by the Commission in response to the request of
the Public Securities Association dated May 24, 1994 (collectively, the
"▇▇▇▇▇▇/PSA Letter"), and the requirements of the No-Action Letter of February
20, 1995 issued by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the ▇▇▇▇▇▇/PSA Letter, the "No-Action Letters"), but
shall include only those Computational Materials that have been prepared or
delivered to prospective investors by such Underwriter. For purposes hereof,
"ABS Term Sheets" and "Collateral Term Sheets" shall have the meanings given
such terms in the PSA Letter but shall include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared or delivered to prospective
investors by such Underwriter. For purposes hereof, "Derived Information" means
such portion, if any, of the information delivered to the Company by such
Underwriter for filing with the Commission on Form 8-K and (i) is not contained
in the Prospectus without taking into account information incorporated therein
by reference, and (ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other information)
furnished to such Underwriter by or on behalf of the Company, including but not
limited to any information provided by the Mortgage Loan Seller to the Company
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. 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 hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. 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. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more that 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and such Underwriter on the
other hand from the offering of the Certificates pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of such Underwriter on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and such
Underwriter on the other hand in connection with the offering of the
Certificates pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Certificates pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by such Underwriter, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Certificates as set forth on such cover.
The relative fault of the Company on the one hand and such Underwriter on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company, or by such Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and each Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, each Underwriter shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Certificates underwritten by such Underwriter and
distributed to the public were offered 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 (with the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls each
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. Each Underwriter's obligations to contribute
pursuant to this Section 7 is in proportion to the initial certificate balance
of Certificates set forth opposite its name in Schedule I hereto.
8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of each Underwriter or controlling person, or by or on behalf of
the Company, and shall survive delivery of the Certificates to each Underwriter.
9. Termination of Agreement.
(a) Termination; General. Any Underwriter may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the financial condition, earnings, business affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of such Underwriter, impracticable to market the Certificates or
to enforce contracts for the sale of the Certificates, or (iii) if trading in
any securities of the Company has been suspended or limited by the Commission or
the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the NASDAQ National Market System
has been suspended or limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to the Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be
directed to ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial
Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Real Estate Investment
Banking; notices to ▇▇▇▇ ▇▇▇▇▇ shall be directed to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Real
Estate Capital Markets, with a copy to the General Counsel; notices to Daiwa
shall be directed to Daiwa Securities America Inc., Financial Square, ▇▇ ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Commercial Mortgage Department,
with a copy to the General Counsel; and notices to the Company shall be directed
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., World Financial Center, North Tower,
New York, New York 100281-1315, Attention: Secretary, with a copy to the
treasurer; or, as to any party, such other address as may hereafter be furnished
by such party to the others in writing.
11. Parties. This Agreement shall each inure to the benefit of and be
binding upon each Underwriter, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than each Underwriter,
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their 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 each Underwriter, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
13. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
14. Miscellaneous. This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such change, waiver, discharge or termination is sought. This Agreement may be
signed in any number of counterparts, each of which shall be deemed an original,
which taken together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
INVESTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
DAIWA SECURITIES AMERICA INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
UNDERWRITING AGREEMENT, DATED AS OF MARCH 25, 1998
CUT-OFF DATE: March 1, 1998
CERTIFICATES: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1998-C1-CTL
Percent of
Initial Percent of
Percent of Aggregate Initial
Initial Certificate Aggregate
Aggregate Balance Certificate
Certificate or Notional Balance or
Balance Amount to be Notional Amount
Initial or Notional Purchased by to be Purchased
Aggregate Amount to be ▇▇▇▇ ▇▇▇▇▇ by Daiwa
Class Certificate Purchased by Wood Walker, Securities
Designation Balance(1) ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. Incorporated America Inc.
----------- ------------ ------------------ ------------- ----------------
Class A-1 $132,820,333 34% 33% 33%
Class A-2 $ 82,098,000 34% 33% 33%
Class A-3 $235,868,000 34% 33% 33%
Class A-PO $ 1,469,667 0% 0% 100%
Class B $ 38,765,000 34% 33% 33%
Class C $ 32,304,000 50% 0% 50%
Class D $ 38,765,000 0% 0% 100%
Class E $ 9,691,000 0% 0% 100%
Class IO (5) 0% 0% 100%
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(1) Subject to a permitted variance of plus or minus 5%.
(2) Expressed as a percentage of the initial aggregate Certificate Balance or
Notional Amount of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates will include accrued
interest at the initial Pass-Through Rate therefor on the aggregate stated
or notional amount, as applicable, thereof to be purchased from the Cut-off
Date to but not including the Closing Date.
(3) By each of ▇▇▇▇▇'▇ Investors Service, Inc. and, except with respect to
Class A-PO Certificates, Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
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(4) The Class A-PO Certificates will not entitle the holders thereof to receive
distributions of interest, but will entitle such holders to receive
distributions of principal with respect to the Discount Mortgage Loans (as
defined in the Prospectus Supplement).
(5) The Class IO Certificates will not have a principal balance nor will they
entitle the holders thereof to receive distributions of principal, but will
entitle such holders to receive payments of interest equal to the aggregate
of the interest accrued on the notional amount of each of its Components as
described in the Prospectus.
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