EXHIBIT 1.1
Form Of Underwriting
Agreement
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
Mortgage Pass-Through Certificates
Series
UNDERWRITING AGREEMENT
, 19
[Lead Underwriter's name and address]
Ladies and Gentlemen:
Deutsche Mortgage & Asset Receiving Corporation, a
Delaware corporation (the "Company"), proposes, subject to the
terms and conditions stated herein, to sell to the underwriters
named in Schedule I hereto (the "Underwriters"; provided,
however, that if you are the only underwriter named in
Schedule I, then the terms "Underwriter" and "Underwriters" shall
refer solely to you) its Mortgage Pass-Through Certificates,
Series , as specified in Schedule II hereto (the "Offered
Certificates"), to be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement") to be dated as
of 1, 19 (the "Cut-off Date"), among the Company,
as seller, __________________________ as servicer (the
"Servicer")[, _______________, as master servicer (the "Master
Servicer")] and , as trustee (the "Trustee").
The Offered Certificates will be issued in classes (each, a
"Class"). The Offered Certificates will evidence undivided
interests in the Upper Tier REMIC (as defined in the Pooling and
Servicing Agreement). The Upper Tier REMIC will consist
primarily of classes of interests (the "Lower Tier
Interests") evidencing beneficial ownership in the Lower Tier
REMIC (as defined in the Pooling and Servicing Agreement and,
together with the Upper Tier REMIC, the "Trust Funds")
established pursuant to the Pooling and Servicing Agreement. The
Lower Tier REMIC will consist primarily of a pool (the "Pool") of
---------------
1 This form of Underwriting Agreement contemplates a two-tier
REMIC structure, but a single-tier REMIC or a non-REMIC
grantor trust may be used instead for a particular series of
certificates.
[mortgage loans] (the "[Mortgage Loans]") sold by the Company to
the Lower Tier REMIC and listed in an attachment to the Pooling
and Servicing Agreement. Elections will be made to treat each of
the Trust Funds as a real estate mortgage investment conduit (a
"REMIC"). The Class __ Certificates and Class ___ Certificates
are also to be issued pursuant to the Pooling and Servicing
Agreement but do not form a part of this offering. The Offered
Certificates are described more fully in the Basic Prospectus and
the Prospectus Supplement (each of which terms is defined below)
which the Company is furnishing to you.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter
that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
(No. 333-4598) on Form S-3 for the registration under the
Securities Act of 1933, as amended (the "Act"), with respect to
the Offered Certificates, which registration statement has become
effective and copies of which have heretofore been delivered to
you. Such registration statement meets the requirements set
forth in Rule 415(a)(1) under the Act and complies in all other
material respects with such Rule. The Company proposes to file
with the Commission pursuant to Rule 424 under the Act a
supplement, dated the date specified in Schedule II hereto, to
the prospectus, dated the date specified in Schedule II hereto,
relating to the Offered Certificates and the method of
distribution thereof and has previously advised you of all
further information (financial and other) with respect to the
Offered Certificates set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date
hereof is hereinafter called the "Registration Statement"; such
prospectus, in the form in which it will be filed with the
Commission pursuant to Rule 424 under the Act, is hereinafter
called the "Basic Prospectus"; such supplement to the Basic
Prospectus, in the form in which it will be filed with the
Commission pursuant to Rule 424 of the Act, 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 Supplement
which has heretofore been filed pursuant to Rule 402(a) or
Rule 424 is hereinafter called a "Preliminary Prospectus
Supplement". The Company will not, without your prior consent,
file any other amendment to the Registration Statement or make
any change in the Basic Prospectus or the Prospectus Supplement
until after the period in which a prospectus is required to be
delivered to purchasers of the Offered Certificates under the
Act. The Company, as seller with respect to the Lower Tier REMIC
and as depositor with respect to the Upper Tier REMIC, will file
with the Commission within fifteen days of the issuance of the
Offered Certificates a report on Form 8-K setting forth specific
information concerning the Offered Certificates (the "Form 8-K").
(b) As of the date hereof, when the Registration
Statement became effective, when the Prospectus Supplement is
first filed pursuant to Rule 424 under the Act, when, prior to
the Closing Date, any other amendment to the Registration
Statement becomes effective, and when any supplement to the
Prospectus Supplement is filed with the Commission, and at the
Closing Date, (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as amended or supplemented as
of any such time, complied or will comply in all material
respects with the applicable requirements of the Act and the
rules thereunder and (ii) the Registration Statement, as amended
as of any such time, did not and will not contain any untrue
statement of a material fact and did not and will not omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the
Prospectus, as amended or supplemented as of any such time, did
not and 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 statements therein, in the light of the
circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (A) the information contained in or omitted from
the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by you, or by
any Underwriter through you, specifically for use in the
preparation thereof, or (B) the information contained in or
omitted from any Current Report (as defined in Section 5(b)
hereof), or any amendment thereof or supplement thereto,
incorporated by reference in the Registration Statement or the
Prospectus (or any amendment thereof or supplement thereto).
(c) The Company is a corporation, duly organized,
validly existing and in good standing under the laws of the State
of Delaware with full power and authority (corporate and other)
to own its properties and conduct its business, as described in
the Prospectus, and to enter into and perform its obligations
under this Agreement and the Pooling and Servicing Agreement, and
is conducting its business so as to comply in all material
respects with all applicable statutes, ordinances, rules and
regulations of the jurisdictions in which it is conducting
business.
(d) The Company is not aware of (i) any request by the
Commission for any further amendment of the Registration
Statement or the Prospectus or for any additional information,
(ii) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose or
(iii) any notification with respect to the suspension of the
qualification of the Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(e) At or prior to the Closing Date the Company will
have entered into the Pooling and Servicing Agreement; this
Agreement has been duly authorized, executed and delivered by the
Company, and the Pooling and Servicing Agreement, when delivered
by the Company, will have been duly authorized, executed and
delivered by the Company, and this Agreement and the Pooling and
Servicing Agreement will constitute valid and binding agreements
of the Company, enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by
(i) bankruptcy, insolvency, liquidation, moratorium,
receivership, reorganization or similar laws affecting the rights
of creditors generally, (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at
law, and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy
considerations limit the enforceability of any provisions of this
Agreement which purport to provide indemnification from
securities law liabilities.
(f) The Offered Certificates and the Pooling and
Servicing Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus; the Offered
Certificates [are "mortgage related securities" as such term is
defined in Section 3(a)(41) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and] have been duly and
validly authorized by the Company, and will, when duly and
validly executed and authenticated by the Trustee and delivered
to and paid for by the Underwriters in accordance with this
Agreement and the Pooling and Servicing Agreement, be entitled to
the benefits of the Pooling and Servicing Agreement.
(g) As of the Closing Date, the representations and
warranties of the Company set forth in Section _______ of the
Pooling and Servicing Agreement will be true and correct.
(h) Neither the issuance and sale of the Offered
Certificates, nor the consummation of any other of the
transactions contemplated herein, nor the fulfillment of any of
the terms of the Pooling and Servicing Agreement or this
Agreement, will result in the breach of any term or provision of
the certificate of incorporation or by-laws of the Company or
conflict with, result in a material breach, violation or
acceleration of or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which it is bound, or
any statute, order or regulation applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company
or any of its subsidiaries. Neither the Company nor any of its
subsidiaries is a party to, bound by or in breach or violation of
any indenture or other agreement or instrument, or subject to or
in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over it, which materially and adversely
affects the ability of the Company to perform its obligations
under this Agreement and the Pooling and Servicing Agreement.
(i) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the knowledge of
the Company, threatened, before any court, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement,
the Pooling and Servicing Agreement or the Offered Certificates,
(ii) seeking to prevent the issuance of the Offered Certificates
or the consummation of any of the transactions contemplated by
this Agreement or the Pooling and Servicing Agreement,
(iii) which might materially and adversely affect the performance
by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Pooling and Servicing
Agreement or the Offered Certificates or (iv) seeking to affect
adversely the federal income tax attributes of the Offered
Certificates described in the Prospectus.
(j) There has not been any material adverse change in
the business, operations, financial condition, properties or
assets of the Company since the date of its latest audited
financial statements which would have a material adverse effect
on the ability of the Company to perform its obligations under
the Pooling and Servicing Agreement.
(k) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and
the Pooling and Servicing Agreement and the execution, delivery
and sale of the Offered Certificates have been or will be paid at
or prior to the Closing Date.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the percentage of [each
Class of] the Offered Certificates set forth opposite each such
Underwriter's name in Schedule I hereto.
The purchase price for [each Class of the Offered
Certificates as a percentage of the aggregate principal (or
notional principal) balance thereof] as of the Closing Date (as
defined below) is set forth in Schedule II hereto. There will be
added to the purchase price of the Offered Certificates interest
in respect of [each Class of] the Offered Certificates at the
interest rate applicable [to such Class] from the Cut-off Date to
but not including the Closing Date.
3. Delivery and Payment. Delivery of and payment for
the Offered Certificates shall be made at the date, location and
time of delivery set forth in Schedule II hereto, or such later
date as the Underwriters shall designate, which date and time may
be postponed by agreement between the Underwriters and the
Company or as provided in Section 10 hereof (such date, location
and time of delivery and payment for the Offered Certificates
being herein called the "Closing Date"). Delivery of the Offered
Certificates shall be made to the several Underwriters against
payment by the several Underwriters of the purchase price thereof
to or upon the order of the Company by check or checks payable in
New York Clearing House (next day) funds or immediately available
funds as specified in Schedule II hereto. The Offered
Certificates shall be registered in such names and in such
denominations as the Underwriters may request not less than three
full business days in advance of the Closing Date.
The Company agrees to have the Offered Certificates
available for inspection, checking and packaging by the
Underwriters in New York, New York, not later than 1:00 p.m. on
the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that
the several Underwriters propose to offer the Offered
Certificates for sale to the public as set forth in the
Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will promptly advise the Underwriters
(i) when any amendment to the Registration Statement shall have
become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or the Prospectus or for
any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement affecting the Offered Certificates or the
institution or threatening of any proceeding for that purpose and
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Offered
Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
not file any amendment to the Registration Statement or
supplement to the Prospectus unless the Company has furnished you
a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object
until after the period in which a prospectus is required to be
delivered to purchasers of the Offered Certificates under the
Act. Subject to the foregoing sentence, the Company will cause
the Prospectus Supplement to be mailed to the Commission for
filing pursuant to Rule 424 under the Act by first-class
certified or registered mail or to be filed with the Commission
in another manner pursuant to said Rule. The Company will use
its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) The Company will cause any Computational Materials
and any Structural Term Sheets (each as defined in Section 9
below) with respect to the Offered Certificates of a Series that
are delivered by an Underwriter to the Company pursuant to
Section 9 to be filed with the Commission on a Current Report on
Form 8-K (a "Current Report") pursuant to Rule 13a-11 under the
Exchange Act on the business day immediately following the later
of (i) the day on which such Computational Materials and
Structural Term Sheets are delivered to counsel for the Company
by an Underwriter prior to 10:30 a.m. and (ii) the date on which
this Agreement is executed and delivered. The Company will cause
one Collateral Term Sheet (as defined in Section 10 below) with
respect to the Offered Certificates of a Series that is delivered
by the Underwriters to the Company in accordance with the
provisions of Section 10 to be filed with the Commission on a
Current Report pursuant to Rule 13a-11 under the Exchange Act on
the business day immediately following the day on which such
Collateral Term Sheet is delivered to counsel for the Company by
the Underwriters prior to 10:30 a.m. In addition, if at any time
prior to the availability of the Prospectus Supplement, the
Underwriters have delivered to any prospective investor a
subsequent Collateral Term Sheet that reflects, in the reasonable
judgment of the Underwriters and the Company, a material change
in the characteristics of the Mortgage Loans for the Series from
those on which a Collateral Term Sheet with respect to the Series
previously filed with the Commission was based, the Company will
cause any such Collateral Term Sheet that is delivered by the
Underwriters to the Company in accordance with the provisions of
Section 10 to be filed with the Commission on a Current Report on
the business day immediately following the day on which such
Collateral Term Sheet is delivered to counsel for the Company by
the Underwriters prior to 10:30 a.m. In each case, the Company
will promptly advise the Underwriters when such Current Report
has been so filed. Each such Current Report shall be
incorporated by reference in the Prospectus and the Registration
Statement. Notwithstanding the five preceding sentences, the
Company shall have no obligation to file any materials provided
by the Underwriters pursuant to Section 9 and 10 which, in the
reasonable determination of the Company, are not required to be
filed pursuant to the Xxxxxx Letters or the PSA Letter (each as
defined in Section 9 below), or contain erroneous information or
contain any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct,
any Computational Materials, Structural Term Sheets or Collateral
Term Sheets provided by the Underwriters to the Company pursuant
to Section 9 or Section 10 hereof. The Company shall give notice
to the Underwriters of its determination not to file any
materials pursuant to clause (i) of the preceding sentence and
agrees to file such materials if the Underwriters reasonably
object to such determination within one business day after
receipt of such notice.
(c) If, at any time when a prospectus relating to the
Offered Certificates is required to be delivered under the Act,
any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with
the Act or the rules under the Act, the Company promptly will
prepare and file with the Commission, subject to paragraph (a) of
this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such
compliance and, if such amendment or supplement is required to be
contained in a post-effective amendment to the Registration
Statement, will use its best efforts to cause such amendment of
the Registration Statement to be made effective as soon as
possible; provided,however, that the Company will not be required
to file any such amendment or supplement with respect to any
Computational Materials, Structural Term Sheets or Collateral
Term Sheets incorporated by reference in the Prospectus other
than any amendments or supplements of such Computational
Materials, Structural Term Sheets or Collateral Term Sheets that
are furnished to the Company pursuant to Section 9(e) hereof
which the Company determines to file in accordance therewith.
(d) The Company will furnish to the Underwriters and
counsel for the Underwriters, without charge, signed copies of
the Registration Statement (including exhibits thereto) and to
each other Underwriter a copy of the Registration Statement
(without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the
Act, as many copies of the Basic Prospectus, the Preliminary
Prospectus Supplement, if any, and the Prospectus Supplement and
any amendments and supplements thereto as the Underwriters may
reasonably request.
[(e) The Company agrees that, so long as the Offered
Certificates shall be outstanding, it will cause the Trustee to
deliver to the Underwriters the annual statement as to compliance
and the annual statement[s] of a firm of independent public
accountants, furnished to the Trustee by the Master Servicer
pursuant to Section[s] ____________ of the Pooling and Servicing
Agreement, as soon as such statements are furnished to the
Trustee.]
(f) The Company will furnish such information, execute
such instruments and take such action, if any, as may be required
to qualify the Offered Certificates for sale under the laws of
such jurisdictions as the Underwriters may designate and will
maintain such qualification in effect so long as required for the
distribution of the Offered Certificates; provided, however, that
the Company shall not be required to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
[(g) The Company will pay all costs and expenses in
connection with the transactions contemplated hereby, including,
but not limited to, the fees and disbursements of its counsel;
the costs and expenses of printing (or otherwise reproducing) and
delivering the Pooling and Servicing Agreement and the Offered
Certificates; accounting fees and disbursements; the costs and
expenses in connection with the qualification or exemption of the
Offered Certificates under state securities or blue sky laws,
including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the
preparation of any Blue Sky Survey and in connection with any
determination of the eligibility of the Offered Certificates for
investment by institutional investors and the preparation of any
Legal Investment Survey; the expenses of printing any such Blue
Sky Survey and Legal Investment Survey; the costs and expenses in
connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto), the Basic
Prospectus, the Preliminary Prospectus Supplement, if any, and
the Prospectus Supplement, the preparation and printing of this
Agreement, the furnishing to the Underwriters of such copies of
each Preliminary Prospectus Supplement, if any, and Prospectus
Supplement as the Underwriters may reasonably request and the
fees of rating agencies. [Except as provided in Section 7
hereof,] the Underwriters shall be responsible for paying all
costs and expenses incurred by them in connection with their
purchase and sale of the Offered Certificates, including the fees
of counsel to any Underwriter.]
6. Conditions to the Obligations to the Underwriters.
The obligations of the Underwriters to purchase the Offered
Certificates as provided in this Agreement shall be subject to
the accuracy of the representations and warranties on the part of
the Company contained herein as of the date hereof and the
Closing Date, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and
to the following additional conditions with respect to the
Offered Certificates:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened; and
the Prospectus Supplement shall have been filed with the
Commission within the time period prescribed by the Commission.
(b) The Company shall have delivered to you a
certificate, dated the Closing Date, of any of [list applicable
executives] of the Company to the effect that the signer of such
certificate has carefully examined this Agreement and the
Prospectus and that: (i) the representations and warranties of
the Company in this Agreement are true and correct in all
material respects at and as of the Closing Date with the same
effect as if made on the Closing Date, (ii) the Company has
complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the
Closing Date, (iii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened, and (iv) nothing has come to his attention that would
lead him to believe that the Prospectus contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(c) The Underwriters shall have received from [Cleary,
Gottlieb, Xxxxx & Xxxxxxxx], counsel for the Company, a favorable
opinion, dated the Closing Date and satisfactory in form and
substance to counsel for the Underwriters, to the effect that:
(i) Each of this Agreement and the Pooling and
Servicing Agreement has been duly executed and
delivered by the Company under the law of the State of
New York;
(ii) Each of this Agreement and the Pooling and
Servicing Agreement is a legal, valid and binding
agreement of the Company enforceable against the
Company in accordance with its terms;
(iii) The Offered Certificates, when duly
executed, authenticated and delivered in accordance
with the Pooling and Servicing Agreement, will be
validly issued and outstanding and entitled to the
benefits of such Pooling and Servicing Agreement;
(iv) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act
of 1939, as amended, and the trust created thereunder
is not required to be registered under the Investment
Company Act of 1940, as amended;
(v) Such counsel confirms that [(based solely
upon telephonic confirmation from a representative of
the Commission)] the Registration Statement is
effective under the Act and, to the best of such
counsel's knowledge, no stop order with respect thereto
has been issued, and no proceeding for that purpose has
been instituted or threatened by the Commission under
the Act; such Registration Statement (except the
financial statements and schedules and other financial
and statistical data included therein and the documents
incorporated by reference therein, as to which such
counsel need express no view), at the time it became
effective and the Prospectus (except the financial
statements and schedules and the other financial and
statistical data included therein and the documents
incorporated by reference therein as to which such
counsel need express no view), as of the date of the
Prospectus Supplement, appeared on their face to be
appropriately responsive in all material respect to the
requirements of the Act and the rules and regulations
thereunder;
(vi) The statements set forth under the heading
"Description of the Offered Certificates" in the
Prospectus, insofar as such statements purport to
summarize certain provisions of the Pooling and
Servicing Agreement and the Offered Certificates,
provide a fair summary of such provisions;
(vii) the statements set forth in the Prospectus
under the headings "Certain Legal Aspects of the
Mortgage Loans and Contracts -- The Mortgage Loans",
"Federal Income Tax Consequences" (insofar as they
relate specifically to the purchase, ownership and
disposition of the Offered Certificates) and "ERISA
Considerations" (insofar as they relate specifically to
the purchase, ownership and disposition of such Offered
Certificates), to the extent that they constitute
matters of law or legal conclusions, provide a fair
summary of such law or conclusions; and
(viii) assuming compliance with all provisions of
the Pooling and Servicing Agreement, for federal income
tax purposes, the Trust Fund (other than any such
excluded assets) will qualify as one or more REMICs
pursuant to Section 860D of the Internal Revenue Code
of 1986, as amended (the "Code"), each Class of
Certificates of the Series, other than the Residual
Class or Classes, will constitute a class of "regular
interests" in a REMIC within the meaning of the Code,
and each Class of such Certificates specified in the
Prospectus as a Class of Residual Certificates will
constitute the "residual interest" in a REMIC within
the meaning of the Code.
Such opinion (a) may express its reliance as to factual
matters on certificates of government and agency officials and
the representations and warranties made by, and on certificates
or other documents furnished by officers of, the parties to this
Agreement and the Pooling and Servicing Agreement, (b) may assume
the due authorization, execution and delivery of the instruments
and documents referred to therein by the parties thereto other
than the Company, and (c) may be qualified as an opinion only on
the law of the State of New York, the federal law of the United
States of America and the General Corporation Law of the State of
Delaware.
Based on such counsel's participation in conferences
with officers and other representatives of the Company, the
Servicer, [the Master Servicer,] Underwriters' counsel,
representatives of the Trustee and the Underwriters at which the
contents of the Registration Statement and the Prospectus were
discussed and, although such counsel need not pass upon or assume
responsibility for the actual accuracy, completeness or fairness
of the statements contained in the Registration Statement or the
Prospectus (except as stated in paragraph [(vii)] above) and need
not make an independent check or verification thereof for the
purpose of rendering this opinion, on the basis of the foregoing,
such counsel shall also confirm that nothing has come to the
attention of such counsel that would lead such counsel to believe
that the Registration Statement (which for purposes of such
opinion shall not be deemed to include any exhibits filed
therewith or documents incorporated by reference therein), at the
time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as of the date of the
Prospectus Supplement and at the Closing Date, contained or
contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading (other than financial statements, schedules
and other numerical, financial and statistical data and the
documents incorporated therein and the information included under
the caption "Plan of Distribution" contained in the Registration
Statement, any amendment thereof and the Prospectus, as to which
such counsel need express no opinion). Insofar as questions of
materiality are involved in the foregoing opinion, such counsel
may as to factual matters necessary to the determination of
materiality rely upon certificates and other information provided
by officers and other representatives to the Company and as to
determinations of materiality, may seek in the first instance and
rely where such counsel concludes such reliance is justifiable,
on the view of officers and other representatives of the Company.
(d) The Underwriters shall have received from
____________________________________ a favorable opinion, dated
the Closing Date and satisfactory in form and substance to
counsel for the Underwriters, to the effect that:
(i) The Company is a corporation, duly organized,
validly existing and in good standing under the laws of
the State of Delaware and has the corporate power and
authority to own its properties and conduct its
business as described in the Prospectus, to enter into
and perform its obligations under this Agreement and
the Pooling and Servicing Agreement and to consummate
the transactions contemplated hereby and thereby, and
is conducting its business so as to comply in all
material respects with all applicable statutes,
ordinances, rules and regulations of the jurisdictions
in which it is conducting business.
(ii) Neither the offer, sale and issuance of the
Offered Certificates nor the consummation of any other
of the transactions contemplated in 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 Company
or, to the knowledge of such counsel, any indenture or
other agreement or instrument to which the Company is a
partner or by which it is bound, or any State of New
York, State of Delaware, Commonwealth of Massachusetts
or federal statute or regulation applicable to the
Company or, to the knowledge of such counsel, any order
of any State of New York, State of Delaware,
Commonwealth of Massachusetts or federal court,
regulatory body, administrative agency or governmental
body having jurisdiction over the Company.
(iii) To the knowledge of such counsel, there are
no material contracts, indentures or other documents of
the Company required to be described or referred to in
the Registration Statement or to be filed as exhibits
thereto other than those described or referred to
therein or filed or incorporated by reference as
exhibits thereto.
(iv) There is no pending or, to the best
knowledge of such counsel, threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator involving the
Company of a character required to be disclosed in the
Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to
be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not
described or filed as required.
(v) No consent, approval, authorization or order
of any State of New York, State of Delaware,
Commonwealth of Massachusetts or federal court or
governmental agency or body is required for the
consummation by the Company of the transactions
contemplated by this Agreement and the Pooling and
Servicing Agreement, except (i) such as have been
obtained under the Act and (ii) such as may be required
under the blue sky laws of any jurisdiction in
connection with the purchase and the offer and sale of
the Offered Certificates by any Underwriter, as to
which such counsel need express no opinion.
Such opinion (a) may express counsel's reliance as to
factual matters on certificates of government and agency
officials and the representations and warranties made by, and on
certificates or other documents furnished by officers of, the
parties to this Agreement and the Pooling and Servicing Agreement
and (b) may be qualified as an opinion only on the law of the
State of New York, the General Corporate Law of the State of
Delaware, the law of The Commonwealth of Massachusetts and the
federal law of the United States of America.
(e) The Underwriters shall have received from counsel
for [each of] the Servicer [and Master Servicer] [a] favorable
opinion[s], dated the Closing Date and satisfactory in form and
substance to counsel for the Underwriters, to the effect that:
(i) The Servicer [or Master Servicer, as the case
may be,] has been duly organized as a corporation and
is validly existing and in good standing under the laws
of the State[s] of _______ [or _______, as the case may
be] and has corporate power and authority (corporate
and other) to own its properties and conduct its
business as described in the Prospectus, to enter into
and perform its obligations under the Pooling and
Servicing Agreement and to consummate the transactions
contemplated thereby, is duly qualified as a foreign
corporation in good standing in all jurisdictions in
which the ownership or leasing of property or the
conduct of its business requires such qualification,
owns or possesses or has obtained all material
governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease,
own or license, as the case may be, and to operate, its
properties and to carry on its business as described in
the Prospectus, and is conducting its business so as to
comply in all material respects with all applicable
statutes, ordinances, rules and regulations of the
jurisdictions in which it is conducting business.
(ii) The execution and delivery of the Pooling and
Servicing Agreement has been duly authorized by the
Servicer [or Master Servicer, as the case may be,] and
the Pooling and Servicing Agreement has been duly
executed and delivered by it and constitutes its valid
and binding agreement, enforceable against it in
accordance with its terms, except as such
enforceability may be limited by bankruptcy,
insolvency, liquidation, receivership, moratorium,
reorganization or similar laws affecting the
enforcement of rights of creditors generally and to
general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at
law.
(iii) Neither the execution nor the delivery of
the Pooling and Servicing Agreement, nor the
consummation of any other of the transactions
contemplated therein, nor the fulfillment of the terms
of the Pooling and Servicing Agreement will conflict
with, result in a breach or violation of any term or
provision of, or constitute a default (or an event
which with the passage of time or notification, or
both, would constitute a default) under the
[certificate] [articles] of incorporation or by-laws of
the Servicer [or Master Servicer, as the case may be],
any statute currently applicable to it or any order, or
regulation currently applicable to it of any court,
regulatory body, administrative agency or governmental
body having jurisdiction over it or the terms of any
indenture or other agreement or instrument known to
such counsel to which it is a party or by which it or
any of its properties are bound.
(iv) There is no pending or, to the best
knowledge of such counsel, threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator involving the
Servicer [or Master Servicer, as the case may be,] of a
character required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or
other document of a character required to be described
in the Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as
required.
(v) No approval, authorization, consent or order,
registration, filing, qualification, license or permit
of or with any court or government agency or body is
required for the consummation by the Master Servicer or
Servicer, as the case may be, of the transaction
contemplated in the Pooling and Servicing Agreement.
Each of such opinions (a) may express counsel's
reliance as to factual matters on the representations and
warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the
Pooling and Servicing Agreement, (b) may assume the due
authorization, execution and delivery of the Pooling and
Servicing Agreement and the instruments and documents referred to
therein by the parties thereto other than the Servicer [or the
Master Servicer, as the case may be,] and (c) may be qualified as
an opinion only on the law of ________ [or _______, as the case
may be,] and the federal law of the United States of America.
(f) The Underwriters shall have received from
, counsel for the Underwriters, a favorable opinion,
dated the Closing Date and satisfactory in form and substance to
the Underwriters.
(g) The Underwriters shall have received from
________________ certified public accountants, a letter dated the
Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters stating in effect
that [using the assumptions and methodology used by the Company,
all of which shall be described in such letter, they have
recalculated such numbers and percentages set forth in the
Prospectus as the Underwriters may reasonably request and as are
agreed to by _________________, compared the results of their
calculations to the corresponding items in the Prospectus, and
found each such number and percentage set forth in the Prospectus
to be in agreement with the results of such calculations]. To
the extent historical financial information with respect to the
Company and/or historical financial, delinquency or related
information with respect to one or more servicers is included in
the Prospectus, such letter or letters shall also relate to such
information.
(h) The Offered Certificates listed on Schedule III
hereto shall have been rated as indicated on such Schedule by the
rating agency or agencies indicated.
(i) All proceedings in connection with the
transactions contemplated by this Agreement, and all documents
incident hereto and thereto, shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters,
and the Underwriters and counsel for the Underwriters shall have
received such additional information, certificates and documents
as they may reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided by this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substances to the Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior
to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company in writing, or by
telephone or by either telegraph or telecopier confirmed in
writing.
[7. Reimbursement of Underwriters' Expenses. If the
sale of any Offered Certificates provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 6 hereof is not satisfied or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or therein or comply with
any provision hereof or thereof, other than by reason of a
default by any of the Underwriters, the Company will reimburse
the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the
proposed purchase and sale of such Offered Certificates.]
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of the Act
or the Exchange Act against claims, damages, or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any part
of the Registration Statement when such part became effective, or
in the Registration Statement, any Preliminary Prospectus
Supplement, the Prospectus, or any amendment or supplement
thereto, or any preliminary prospectus supplement, or arise out
of or are based upon the omission or alleged omission (in the
case of any Computational Materials or ABS Term Sheets (as
defined in Section 9 below) in respect of which the Company
agrees to indemnify any Underwriter or any such controlling
person, as set forth below, where such are made in conjunction
with the Prospectus) to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably
incurred by it in connection with investigating or defending
against such loss, claim, damage, liability, or action; provided,
however, (i) that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made
therein (A) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter directly
or through another Underwriter specifically for use in the
preparation thereof or (B) in any Current Report or any amendment
or supplement thereof, except to the extent that any untrue
statement or alleged untrue statement therein or omission
therefrom results (or is alleged to have resulted) directly from
an error (a "Mortgage Pool Error") in the information concerning
the characteristics of the Mortgage Loans furnished by the
Company to an Underwriter in writing or by electronic
transmission that was used in the preparation of either (x) any
Computational Materials or ABS Term Sheets (or amendments or
supplements thereof) or (y) any written or electronic materials
furnished to prospective investors on which the Computational
Materials (or amendments or supplements) were based, (ii) such
indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter (or any person
controlling any Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Offered
Certificates which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a
material fact contained in such preliminary prospectus was
corrected in the Prospectus (or the Prospectus as amended or
supplemented) and (iii) such indemnity with respect to any
Mortgage Pool Error shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from whom
the person asserting any loss, claim, damage or liability
received any Computational Materials or ABS Term Sheets (or any
written or electronic materials on which the Computational
Materials or ABS Term Sheets are based) that were prepared on the
basis of such Mortgage Pool Error, if, prior to the time of
confirmation of the sale of the applicable Offered Certificates
to such person, the Company notified such Underwriter in writing
of the Mortgage Pool Error or provided in written or electronic
form information superseding or correcting such Mortgage Pool
Error (in any such case, a "Corrected Mortgage Pool Error"), and
such Underwriter failed to notify such person thereof or to
deliver to such person corrected Computational Materials (or
underlying written or electronic materials) or ABS Term Sheets.
This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter,
but only with reference to (A) written information relating to
such Underwriter furnished to the Company by an Underwriter
directly or through another Underwriter specifically for use in
the preparation of the documents referred to in the foregoing
indemnity, or (B) any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) delivered to prospective
investors by such Underwriter and furnished to the Company by
such Underwriter pursuant to or as contemplated by Section 9 and
incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereof (except that no
such indemnity shall be available for any losses, claims, damages
or liabilities, or actions in respect thereof, resulting from any
Mortgage Pool Error, other than a Corrected Mortgage Pool Error).
This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. The Company
acknowledges that [the statements set forth in the last paragraph
of the cover page and under the heading "Underwriting" or "Plan
of Distribution" in any Preliminary Prospectus Supplement or the
Prospectus] constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity (other than any
Computational Materials or ABS Term Sheets furnished to the
Company by any Underwriter, and you confirm that such statements
are correct. [Any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) furnished to the Company by a
particular Underwriter shall relate exclusively to and be the
several responsibility of such Underwriter and no other
Underwriter.]
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party
(which may be counsel representing the indemnifying party);
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Underwriters in the case of paragraph (a) of this
Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii)
is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this
Section 8 is unavailable or insufficient to hold harmless an
indemnified party under paragraph (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of the losses, claims,
damages, or liabilities referred to in paragraph (a) or (b) above
as follows:
(i) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which
do not arise out of or are not based upon any untrue
statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any
amendments or supplements thereof) in such proportion
so that the Underwriters are responsible for that
portion represented by the percentage that the
underwriting discount bears to the sum of such discount
and the purchase price of the Offered Certificates
specified in Schedule I hereto and the Company is
responsible for the balance; provided, however, that in
no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating
to the offering of the Offered Certificates) be
responsible under this subparagraph (i) for any amount
in excess of the underwriting discount applicable to
the Offered Certificates purchased by such Underwriter
hereunder; and
(ii) in the case of any losses, claims, damages
and liabilities (or actions in respect thereof) which
arise out of or are based upon any untrue statement or
omission of a material fact in any Computational
Materials or ABS Terms Sheets (or any amendments or
supplements thereof) or in any written or electronic
materials on which the Computational Materials are
based, in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the
statement or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable
considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
in such Computational Materials or ABS Term Sheets (or
any amendments or supplements thereof or such written
or electronic materials) results from information
prepared by the Company on the one hand or Underwriters
on the other and the parties' relative intent,
knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Notwithstanding anything to the contrary in this
paragraph (d), 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. For purposes of this Section
8, each person who controls an Underwriter within the meaning of
the Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the
preceding sentence of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
9. Computational Materials and Structural Term
Sheets. (a) Not later than 10:30 a.m., New York time, on the
business day before the date on which the Current Report relating
to the Offered Certificates of a Series is required to be filed
by the Company with the Commission pursuant to Section 5(b)
hereof, the Underwriters shall deliver to the Company five
complete copies of all materials provided by the Underwriters to
prospective investors in such Offered Certificates which
constitute (i) "Computational Materials" within the meaning of
the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and
Xxxxxx Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance
of the Commission to the Public Securities Association (together,
the "Xxxxxx Letters") and the filing of such material is a
condition of the relief granted in such letter (such materials
being the "Computational Materials"), and (ii) "Structural Term
Sheets" within the meaning of the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA
Letter") and the filing of such material is a condition of the
relief granted in such letter (such materials being the
"Structural Term Sheets"). Each delivery of Computational
Materials and Structural Term Sheets to the Company pursuant to
this paragraph (a) shall be effected by delivering four copies of
such materials to counsel for the Company on behalf of the
Company at the address specified in Section 13 hereof and one
copy of such materials to the Company.
(b) Each Underwriter represents and warrants to and
agrees with the Company, as of the date hereof and as of the
Closing Date, that:
(i) if the Underwriters have provided any
Collateral Term Sheets to potential investors in the
Offered Certificates prior to the date hereof and if
the filing of such materials with the Commission is a
condition of the relief granted in the PSA Letter, then
in each such case the Underwriters delivered four
copies of such materials to counsel for the Company on
behalf of the Company at the address specified in
Section 13 hereof and one copy of such materials to the
Company no later than 10:30 a.m., New York City time,
on the first business day following the date on which
such materials were initially provided to a potential
investor;
(ii) the Computational Materials furnished to the
Company by such Underwriter pursuant to Section 9(a)
constitute (either in original, aggregated or
consolidated form) all of the materials furnished to
prospective investors by such Underwriter prior to the
time of delivery thereof to the Company that are
required to be filed with the Commission with respect
to the Offered Certificates in accordance with the
Xxxxxx Letters, and such Computational Materials comply
with the requirements of the Xxxxxx Letters;
(iii) the Structural Term Sheets furnished to the
Company by such Underwriter pursuant to Section 9(a)
constitute all of the materials furnished to
prospective investors by such Underwriter prior to the
time of delivery thereof to the Company that are
required to be filed with the Commission as "Structural
Term Sheets" with respect to the Offered Certificates
in accordance with the PSA Letter, and such Structural
Term Sheets comply with the requirements of the PSA
Letter;
(iv) on the date any such Computational Materials
or Structural Term Sheets with respect to such Offered
Certificates (or any written or electronic materials
furnished to prospective investors on which the
Computational Materials are based) were last furnished
to each prospective investor by such Underwriter and on
the date of delivery thereof to the Company pursuant to
Section 9(a) and on the Closing Date, such
Computational Materials (or such other materials) or
Structural Term Sheets did not and will not include any
untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; and
(v) at the time any Computational Materials or
Structural Term Sheets with respect to the Offered
Certificates were furnished to a prospective investor
and on the date hereof, the Underwriters possessed, and
on the date of delivery of such materials to the
Company pursuant to or as contemplated by this Section
9 and on the Closing Date, the Underwriters will
possess, the capability, knowledge, expertise,
resources and systems of internal control necessary to
ensure that such Computational Materials or Structural
Term Sheets conform to the representations and
warranties of the Underwriters contained in
subparagraphs (ii)-(iv) above of this paragraph (b);
(iv) all Computational Materials (or underlying
materials distributed to prospective investors on which
the Computational Materials were based) delivered to
prospective investors by such Underwriter and all
Structural Term Sheets delivered to prospective
investors by such Underwriter contained and will
contain a legend, prominently displayed on the first
page thereof, stating that the Computational Materials
or Structural Term Sheets are being produced and
provided exclusively by the Underwriter and that the
Underwriter is acting as an underwriter and not acting
as an agent of the Company in connection with the
securities described herein, and otherwise in form and
substance satisfactory to the Company.
Notwithstanding the foregoing, each Underwriter makes no
representation or warranty as to whether any Computational
Materials or Structural Term Sheets (or any written or electronic
materials on which the Computational Materials are based)
included or will include any untrue statement resulting directly
from any Mortgage Pool Error (except any Corrected Mortgage Pool
Error, with respect to materials prepared after the receipt by
such Underwriter from the Company of notice of such Corrected
Mortgage Pool Error or materials superseding or correcting such
Corrected Mortgage Pool Error).
(c) The Underwriters shall cause a firm of public
accountants to furnish to the Company a letter, dated as of the
date on which the Underwriters deliver any Computational
Materials (which term shall be deemed to include, for purposes of
this paragraph (c), calculated statistical information delivered
to prospective investors in the form of a Structural Term Sheet)
to the Company pursuant to Section 9(a), in form and substance
satisfactory to the Company, stating in effect that they have
verified the mathematical accuracy of any calculations performed
by each Underwriter and set forth in such Computational
Materials.
(d) Each Underwriter acknowledges and agrees that the
Company has not authorized and will not authorize the
distribution of any Computational Materials (or any written or
electronic materials on which the Computational Materials are
based) or Structural Term Sheets to any prospective investor, and
agrees that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to
prospective investors shall include a disclaimer in the form
described in paragraph (b)(iv) above.
Each Underwriter agrees that it will not represent to prospective
investors that any Computational Materials or Structural Term
Sheets were prepared or disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the
Offered Certificates of a Series is required to be delivered
under the Act, it shall be necessary to amend or supplement the
Prospectus as a result of an untrue statement of a material fact
contained in any Computational Materials or Structural Term
Sheets provided by any Underwriter pursuant to this Section 9 or
the omission to state therein a material fact required, when
considered in conjunction with the Prospectus and Prospectus
Supplement, to be stated therein or necessary to make the
statements therein, when read in conjunction with the Prospectus
and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any Current Report relating to
any Computational Materials or Structural Term Sheets to comply
with the Act or the rules thereunder, such Underwriter promptly
will prepare and furnish to the Company for filing with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Each Underwriter represents and warrants to the
Company, as of the date of delivery by it of such amendment or
supplement to the Company, that such amendment or supplement will
not include any untrue statement of a material fact or, when read
in conjunction with the Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that each such Underwriter makes no
representation or warranty as to whether any such amendment or
supplement will include any untrue statement resulting directly
from any Mortgage Pool Error (except any Corrected Mortgage Pool
Error, with respect to any such amendment or supplement prepared
after the receipt by such Underwriter from the Company of notice
of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error). The Company
shall have no obligation to file such amendment or supplement if
(i) the Company determines that such amendment or supplement
contains any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct,
any such amendment or supplement provided by any Underwriter to
the Company pursuant to this paragraph (e) or (ii) the Company
reasonably determined that such filing is not required under the
Act and the Underwriters do not object as provided below. The
Company shall give notice to the Underwriters of its
determination not to file an amendment or supplement pursuant to
clause (ii) of the preceding sentence and agrees to file such
amendment or supplement if the Underwriters reasonably object to
such determination within one business day after receipt of such
notice.
10. Collateral Term Sheets. (a) Prior to the
delivery of any "Collateral Term Sheet" within the meaning of the
PSA Letter, the filing of which is a condition of the relief
granted in such letter (such material being the "Collateral Term
Sheets"), to a prospective investor in the Offered Certificates,
the Underwriters shall notify the Company and its counsel by
telephone of their intention to deliver such materials and the
approximate date on which the first such delivery of such
materials is expected to occur. Not later than 10:30 a.m., New
York time, on the business day immediately following the date on
which any Collateral Term Sheet was first delivered to a
prospective investor in the Offered Certificates, the
Underwriters shall deliver to the Company five complete copies of
all materials provide by the Underwriters to prospective
investors in such Offered Certificates which constitute
"Collateral Term Sheets." Each delivery of a Collateral Term
Sheet to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel
for the Company on behalf of the Company at the address specified
in Section 14 hereof and one copy of such materials to the
Company. (Collateral Term Sheets and Structural Term Sheets are,
together, referred to herein as "ABS Term Sheets.") At the time
of each such delivery, the Underwriter making such delivery shall
indicate in writing that the materials being delivered constitute
Collateral Term Sheets, and, if there has been any prior such
delivery shall indicate whether such materials differ in any
material respect from any Collateral Term Sheets previously
delivered to the Company with respect to such Series pursuant to
this Section 10(a) as a result of the occurrence of a material
change in the characteristics of the Mortgage Loans.
(b) Each Underwriter represents and warrants to and
agrees with the Company as of the date hereof and as of the
Closing Date, that:
(i) The Collateral Term Sheets furnished to the
Company by such Underwriter pursuant to Section 10(a)
constitute all of the materials furnished to prospective
investors by such Underwriter prior to time of delivery
thereof to the Company that are required to be filed with
the Commission as "Collateral Term Sheets" with respect to
the Offered Certificates in accordance with the PSA Letter,
and such Collateral Term Sheets comply with the requirements
of the PSA Letter;
(ii) On the date any such Collateral Term Sheets
with respect to such Offered Certificates were last
furnished to each prospective investor by such Underwriter
and on the date of delivery thereof to the Company pursuant
to Section 10(a) and on the Closing Date, such Collateral
Term Sheets did not and will not include any untrue
statement of a material fact or, when read in conjunction
with the Prospectus and Prospectus Supplement, omit to state
a material fact required to be stated therein or necessary
to make the statements therein not misleading; and
(iii) such Underwriter has not represented to
any prospective investor that any Collateral Term Sheets
with respect to any Series were prepared or disseminated on
behalf of the Company, and, except as otherwise disclosed by
such Underwriter to the Company in writing prior to the date
hereof, all Collateral Term Sheets previously furnished to
prospective investors included a disclaimer to the effect
set forth in Section 10(c).
Notwithstanding the foregoing, each Underwriter makes no
representation or warranty as to whether any Collateral Term
Sheet included or will include any untrue statement or material
omission resulting directly from any Mortgage Pool Error (except
any Corrected Mortgage Pool Error, with respect to materials
prepared after the receipt by such Underwriter from the Company
of notice of such Corrected Mortgage Pool Error or materials
superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter acknowledges and agrees that any
Collateral Term Sheets with respect to any Series of Certificates
furnished to prospective investors from and after the date hereof
shall include a disclaimer in form satisfactory to the Company to
the effect set forth in Section 9(d) hereof, and to the effect
that the information contained in such materials supersedes
information contained in any prior Collateral Term Sheet with
respect to such Series of Offered Certificates and will be
superseded by the description of the Mortgage Loans in the
Prospectus Supplement and in the detailed description relating to
such Prospectus Supplement to be filed under cover of Form 8-K.
Each Underwriter agrees that it will not represent to prospective
investors that any Collateral Term Sheets were prepared or
disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Offered Certificates of a Series is required to be delivered
under the Act, it shall be necessary to amend or supplement the
Prospectus as a result of an untrue statement of a material fact
contained in any Collateral Term Sheets provided by any
Underwriter pursuant to this Section 10 or the omission to state
therein a material fact required, when considered in conjunction
with the Prospectus and Prospectus Supplement, to be stated
therein or necessary to make the statements therein, when read in
conjunction with the Prospectus and Prospectus Supplement, not
misleading, or if it shall be necessary to amend or supplement
any Current Report relating to any Collateral Term Sheets to
comply with the Act or the rules thereunder, such Underwriter
promptly will prepare and furnish to the Company for filing with
the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance. Each Underwriter represents and warrants to the
Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will
not include any untrue statement of a material fact or, when read
in conjunction with the Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, each such Underwriter makes no representation
or warranty as to whether any such amendment or supplement will
include any untrue statement resulting directly from any Mortgage
Pool Error (except any Corrected Mortgage Pool Error, with
respect to any such amendment or supplement prepared after the
receipt by such Underwriter from the Company of notice of such
Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error). The Company
shall have no obligation to file such amendment or supplement if
the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in
conjunction with the Prospectus and Prospectus Supplement, omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct,
any such amendment or supplement provided by any Underwriter to
the Company pursuant to this paragraph (d) or (ii) such filing is
not required under the Act.
11. Substitution of Underwriters. (a) If any
Underwriter shall fail to take up and pay for the amount of the
Offered Certificates agreed by such Underwriter to be purchased
under this Agreement, upon tender of such Offered Certificates in
accordance with the terms hereof, and the amount of the Offered
Certificates not purchased does not aggregate more than 10% of
the total amount of the Offered Certificates set forth in
Schedule I hereof, the remaining Underwriters shall be obligated
to take up and pay for the Offered Certificates that the
withdrawing or defaulting Underwriter agreed but failed to
purchase.
(b) If any Underwriter shall fail to take up and pay
for the amount of the Offered Certificates agreed by such
Underwriter to be purchased under this Agreement (such
Underwriter being a "Defaulting Underwriter"), upon tender of
such Certificates in accordance with the terms hereof and
thereof, and the amount of the Offered Certificates not purchased
aggregates more than 10% of the total amount of the Offered
Certificates set forth in Schedule I hereto, and arrangements
satisfactory to the remaining Underwriters and the Company for
the purchase of such Certificates by other persons are not made
within 36 hours thereafter, this Agreement shall terminate. In
the event of any such termination the Company shall not be under
any liability to any Underwriter (except to the extent provided
in Section 5(f) and Section 8 hereof) nor shall any Underwriter
(other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Agreement, to purchase the
amount of the Offered Certificates such Underwriter agreed to
purchase hereunder) be under any liability to the Company (except
to the extent provided in Sections 8, 9 and 10 hereof). Nothing
herein shall be deemed to relieve any Defaulting Underwriter from
any liability it may have to the Company or any other Underwriter
by reason of its failure to take up and pay for Certificates as
agreed by such Defaulting Underwriter.
12. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters by
notice given to the Company prior to delivery of and payment for
all Offered Certificates if prior to such time [(i) trading in
securities of the Company or any affiliate on the New York Stock
Exchange shall have been suspended or limited, or minimum prices
shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared by either federal or New York
State authorities,] or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity
or crisis, the effect of which on the financial markets of the
United States is such as to make it, in the reasonable judgment
of the Underwriters, impractical to market the Offered
Certificates.
13. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Offered Certificates. The provisions of Sections 7, 8, 9 and
10 hereof shall survive the termination or cancellation of this
Agreement.
14. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Underwriters, will be mailed, delivered or either telegraphed or
transmitted by telecopier and confirmed to them at the addresses
set forth on Schedule I hereto; or, if sent to the Company will
be mailed, delivered or either telegraphed or transmitted by
telecopier and confirmed to it at Xxx Xxxxxxxxxxxxx Xxxxx, Xxxx
000, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: R. Xxxxxxx
Xxxxxxxxx, Treasurer, with a copy to [Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention
Xxxxxxxx X. Xxxxxx, Esq].
15. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and their
successors and assigns, and no other person will have any right
or obligation hereunder.
16. Applicable Law; Counterparts. This Agreement will
be governed by and construed in accordance with the laws of the
State of New York without giving effect to the provisions thereof
concerning conflict of laws. This Agreement may be executed in
any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together
constitute but one and the same instrument.
17. Performance under Pooling and Servicing Agreement.
You agree to perform the obligations and exercise the rights of
the Company, all on behalf of the Company, under Sections
________ of the Pooling and Servicing Agreement, and you agree to
perform, on behalf of the Company, the obligation described in
the definition of [Rating Agency] in the Pooling and Servicing
Agreement to designate a successor [Rating Agency] under the
circumstances contemplated therein.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us a
counterpart hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION
By:
Name:
Title:
Accepted at New York, New York
as of the date first written
above.
[NAME OF LEAD UNDERWRITER]
By:
Name:
Title:
DCD02E71
SCHEDULE I
Percentage of
Series , Class _
and Class ___
Certificates to
Underwriter be Purchased
(and address)
SCHEDULE II
Registration Statement No.
Basic Prospectus dated , 19
Prospectus Supplement dated , 19
Title of Certificates: Mortgage Pass-Through
Certificates, Series ,
Multiclass REMIC Certificates
Amount of Certificates
(approximate; subject to
a variance of plus
or minus 5%):
Pass-Through Rates:
Purchase Price Percentage: % (plus accrued interest)
Cut-off Date: , 19
Closing: [A.M. P.M.] , 19 at the
offices of [Cleary, Gottlieb,
Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000]
Manner of payment of
Certificate Purchase Price:
Office for delivery of
non-book entry
Certificates:
Office for payment for
Certificates or wire transfer information:
Office for checking
non-book entry
Certificates:
Denominations: $_______ and integral
multiples of $______ in excess
thereof, provided that one
certificate [of each Class]
may represent a different
amount.
Modification of representations and warranties contained in
Section 1 of the Underwriting Agreement:
None
Modification of opinion of counsel delivered pursuant to
Section 6(c) of the Underwriting Agreement:
None
Modification of items to be covered by the letter from ________
__________ delivered pursuant to Section 6(g) of the Underwriting
Agreement:
None
Modification of items to be covered by the letter from __________
__________ delivered pursuant to Section 6(h) of the Underwriting
Agreement:
None
DCD02E71
