EXHIBIT 1.1
MORTGAGEIT SECURITIES CORP.
$_____________ (Approximately)
Mortgage Pass-Through Certificates, Series 200__-__
Class A $________________ _____%
Class R $________________ _____%
UNDERWRITING AGREEMENT
______________, 200_
[Underwriter]
___________________________
___________________________
___________________________
Ladies and Gentlemen:
MortgageIT Securities Corp., a Delaware corporation (the "Company"),
proposes to sell to you (also referred to herein as the "Underwriter") Mortgage
Pass-Through Certificates, Series 200_-_, Class A Certificates and Class R
Certificates other than a de minimis portion thereof (collectively, the
"Certificates"), having the aggregate principal amounts and Pass-Through Rates
set forth above. The Certificates, together with the Class M Certificates and
Class B Certificates of the same series, will evidence the entire beneficial
interest in the Trust Fund (as defined in the Pooling and Servicing Agreement
referred to below) consisting primarily of a pool (the "Pool") of conventional,
fixed-rate, one- to four- family residential mortgage loans (the "Mortgage
Loans") as described in the Prospectus Supplement (as hereinafter defined) to be
sold by the Company. A de minimis portion of the Class R Certificates will not
be sold hereunder and will be held by the Trustee.
The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
________________________, 200_ (the "Cut-off Date") among the Company, as
seller, ______________________________, as master servicer ("Master Servicer"),
and ______________________________, as trustee (the "Trustee"). The Certificates
are described more fully in the Base Prospectus and the Prospectus Supplement
(each as hereinafter defined) which the Company has furnished to you.
1. Representations Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with the
Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-______) on
Form S-3 for the registration under the Securities Act of 1933, as amended
(the "Act"), of Mortgage Pass-Through Certificates (issuable in series),
including the Certificates, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to the Underwriter. The Company proposes to file
with the Commission pursuant to Rule 424(b) under the rules and regulations
of the Commission under the Act (the "1933 Act Regulations") a prospectus
supplement dated __________, 200_ (the "Prospectus Supplement"), to the
prospectus dated [__________, 200_] (the "Base Prospectus"), relating to
the Certificates and the method of distribution thereof. Such registration
statement (No. 333-______) including exhibits thereto and any information
incorporated therein by reference, as amended at the date hereof, is
hereinafter called the "Registration Statement"; and the Base Prospectus
and the Prospectus Supplement and any information incorporated therein by
reference, together with any amendment thereof or supplement thereto
authorized by the Company on or prior to __________, 200_ (the "Closing
Date") for use in connection with the offering of the Certificates, are
hereinafter called the "Prospectus". The Company further proposes to
prepare, after the final terms of all classes of the Certificates have been
established, a Free Writing Prospectus that will contain substantially all
information that will appear in the Prospectus Supplement, to the extent
that such information is known at that time and minus specific sections
including the Method of Distribution section (such Free Writing Prospectus,
together with the Base Prospectus, the "Definitive Free Writing
Prospectus").
(b) The Registration Statement has become effective and no stop
order suspending the effectiveness of the Registration Statement is in
effect, no proceedings for such purpose are pending before or threatened by
the Commission, and the Registration Statement as of the Effective Date (as
defined in this paragraph), and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with the
applicable requirements of the Act and the 1933 Act Regulations. The
Registration Statement, as of the Effective Date, did not contain any
untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus, as of the date of the Prospectus
Supplement, did not, and as of the Closing Date 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 any information contained in or omitted from the portions of the
Prospectus. In addition, any Issuer Information (as defined below)
contained in the Definitive Free Writing Prospectus, as of the date
thereof, did not contain an untrue statement of a material fact and did 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. The Effective Date shall mean the earlier of the date on which
the Definitive Free Writing Prospectus is first used and the time of the
first Contract of Sale to which such Prospectus Supplement relates. As used
herein, "Pool Information" means all loan level data with respect to the
characteristics of the Mortgage Loans and administrative and servicing
fees, as provided by or on behalf of the Company. The Company acknowledges
that except for any Computational Materials, the Underwriter's Information
and the Decrement/Yield Tables constitute the only information furnished in
writing by you or on your behalf for use in connection with the preparation
of the Registration Statement or the Prospectus, and you confirm that the
Underwriter's Information is correct with respect to you and the
Certificates you underwrite.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has the requisite corporate power to own its properties and to
conduct its business as presently conducted by it.
(d) The Company is not, as of the commencement of the offering,
an Ineligible Issuer, as such term is defined in Rule 405 of the 1933 Act
Regulations.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) As of the Closing Date (as defined herein) the Certificates
will conform in all material respects to the description thereof contained
in the Prospectus and the representations and warranties of the Company in
the [Pooling and Servicing Agreement] will be true and correct in all
material respects.
(g) 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 condition,
financial or otherwise, earnings, affairs, regulatory situation or business
of the Company or the Seller, take as a whole and (B) there have been no
transactions entered into by the Company which are material, other than
those in the ordinary course of business.
(h) The Pooling and Servicing Agreement, when executed and
delivered by the Depositor, will constitute a legal, valid and binding
instrument enforceable against the Depositor in accordance with its terms,
subject, as to the enforceability of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other laws affecting the rights
of creditors generally, and to general principles of equity and the
discretion of the court (regardless of whether enforceability of such
remedies is considered in a proceeding in equity or at law).
(i) The issuance of the Certificates will have been duly
authorized by the Issuer and, when such Certificates are executed and
authenticated in accordance with the Pooling and Servicing Agreement and
delivered against payment pursuant to this Agreement, such Certificates
will be validly issued and outstanding; and the Certificates will be
entitled to the benefits provided by the related Pooling and Servicing
Agreement. The Certificates are in all material respects in the form
contemplated by the related Pooling and Servicing Agreement. Immediately
prior to the delivery of the Certificates to the Underwriter, the Company
will own the Certificates, and upon such delivery the Underwriter will
acquire title thereto, free and clear of any lien, pledge, encumbrance or
other security interest other than one created or granted by the
Underwriter.
(j) Neither the Issuer nor the Trust Funds are or, as a result of
the offer and sale of the Certificates as contemplated in this Agreement
will become, an "investment company" or "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(k) As of the Closing Date, the Mortgage Loan Purchase Agreement
(together with this Agreement, the "Transaction Documents") will have been
duly authorized, executed and delivered by the Company and the Seller and
will conform in all material respects to the description thereof contained
in the Prospectus and will constitute a valid and binding agreement of the
Company and the Seller enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting the enforcement of creditors' rights
generally, and to general principles of equity and the discretion of the
court (regardless of whether enforceability of such remedies is considered
in a proceeding in equity or at law).
(l) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein or in the
Transaction Documents, nor compliance with the provisions of the
Transaction Documents will conflict with or result in the breach of any
material term or provision of the certificate of incorporation of the
Company, and the Company is not in breach or violation of or in default
(nor has an event occurred which with notice or lapse of time or both would
constitute a default) under the terms of (i) any indenture, contract,
lease, mortgage, deed of trust, note agreement or other evidence of
indebtedness or other agreement, obligation or instrument to which the
Company is a party or by which it or its properties are bound, or (ii) any
law, decree, order, rule or regulation applicable to the Company of any
court or supervisory, regulatory, administrative or governmental agency,
body or authority, or arbitrator having jurisdiction over the Company, or
its properties, the default in or the breach or violation of which would
have a material adverse effect on the Company, the trust, the Certificates
or on the ability of the Company to perform its obligations under the
Transaction Documents; and neither the delivery of the Certificates, nor
the execution and delivery of the Transaction Documents or the consummation
of any other of the transactions contemplated herein or in the Transaction
Documents, nor the compliance with the provisions of the Transaction
Documents will result in such a breach, violation or default which would
have such a material adverse effect.
(m) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by the
Company of the transactions contemplated by the Transaction Documents
(other than as required under state securities laws or Blue Sky laws, as to
which no representations and warranties are made by the Company), except
such as have been, or will have been prior to the Closing Date, obtained
under the Act, and such recordations of the assignment of the Mortgage
Loans.
(n) There is no action, suit or proceeding before or by any
court, administrative or governmental agency, or other tribunal, domestic
or foreign, now pending to which the Company is a party, or, to the best of
the Company's knowledge, threatened against the Company, which could
reasonably result individually or in the aggregate in any material adverse
change in the condition (financial or otherwise), earnings, affairs,
regulatory situation or business prospects of the Company or could
reasonably interfere with or materially and adversely affect the
consummation of the transactions contemplated in the Transaction Documents.
(o) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Transaction Documents and
the Certificates have been or will be paid by the Company on or prior to
the Closing Date, except for fees for recording assignments of Mortgage
Loans to the Trustee or, if applicable, to MERS on behalf of the Trustee,
pursuant to the Pooling and Servicing Agreement that have not yet been
completed, which fees will be paid by the Company in accordance with the
Pooling and Servicing Agreement.
(p) The Company acknowledges and agrees that the relationship
between itself and the Underwriter is an arms-length commercial
relationship that creates no fiduciary duty on the part of the Underwriter,
and each party expressly disclaims any fiduciary relationship.
1.2 The Company represents and warrants to, and agrees with, the
Underwriter that as of the Closing Date the representations and warranties of
the Seller in Section 3.1(a) of the Mortgage Loan Purchase Agreement will be
true and correct in all material respects.
1.3 Each Underwriter represents and warrants to and agrees with the
Company that:
(a) No purpose of the Underwriter relating to the purchase of any
of the Class R Certificates by the Underwriter is or will be to enable the
Company to impede the assessment or collection of any tax.
(b) The Underwriter has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long as any
of the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that
it will become insolvent or subject to a bankruptcy proceeding for so long
as any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of
the Class R Certificates by the Underwriter will be to enable it to impede
the assessment or collection of tax. In this regard, the Underwriter hereby
represents to and for the benefit of the Company that the Underwriter
intends to pay taxes associated with holding the Class R Certificates, as
they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by the Class R Certificates.
(e) The Underwriter will, in connection with any transfer it
makes of any of the Class R Certificates, obtain from its transferee the
affidavit required by Section 5.02(i)(B)(1) of the Pooling and Servicing
Agreement, will not consummate any such transfer if it knows or believes
that any representation contained in such affidavit is false and will
provide the Trustee with the Certificate required by Section 5.02(i)(B)(2)
of the Pooling and Servicing Agreement.
(f) The Underwriter hereby certifies that (i) with respect to any
classes of Certificates issued in authorized denominations or Percentage
Interests of less than $25,000 or 20%, as the case may be, the fair market
value of each such Certificate sold to any person on the date of initial
sale thereof by the Underwriter will not be less than $100,000, and (ii)
with respect to each class of Certificates to be maintained on the
book-entry records of The Depository Trust Company ("DTC"), the interest in
each such class of Certificates sold to any person on the date of initial
sale thereof by the Underwriter shall not be less than an initial
Certificate Principal Balance of $25,000.
(g) The Underwriter will use its best reasonable efforts to cause
Cede & Co. to issue a commitment letter, prior to the Closing Date, to DTC
stating that Cede & Co. will value the DTC Registered Certificates
(hereinafter defined) on an ongoing basis subsequent to the Closing Date.
(h) The Underwriter responsible for having funds available at
__________________, in the Underwriter's account at such bank at the time
all documents are executed and the closing of the sale of the Certificates
is completed, except for the transfer of funds and the delivery of the
Certificates will have such funds available. Such funds will be available
for immediate transfer into the account of the Company maintained at such
bank.
(i) Such Underwriter represents that it has in place, and
covenants that it shall maintain, internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements with respect to the generation and use of
Free Writing Prospectuses in connection with the offering of the
Certificates.
(j) As of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder. With
respect to all Free Writing Prospectuses provided by the Underwriter to any
investor, if any, such Free Writing Prospectuses are accurate in all
material respects (taking into account the assumptions explicitly set forth
in the Free Writing Prospectuses, except to the extent of any errors
therein that are caused by errors in the Pool Information, and except for
any Issuer Information therein). The Free Writing Prospectuses provided by
the Underwriter to the Company pursuant to Section 4.4 constitute a
complete set of all Free Writing Prospectuses furnished to any investor by
the Underwriter in connection with the offering of any Certificates, other
than any Underwriter Derived Information.
1.4 The Underwriter covenants and agrees to pay directly, or reimburse
the Company upon demand for (i) any and all taxes (including penalties and
interest) owed or asserted to be owed by the Company as a result of a claim by
the Internal Revenue Service that the transfer of any of the Class R
Certificates to the Underwriter hereunder or any transfer thereof by the
Underwriter may be disregarded for federal tax purposes and (ii) any and all
losses, claims, damages and liabilities, including attorney's fees and expenses,
arising out of any failure of the Underwriter to make payment or reimbursement
in connection with any such assertion as required in (i) above. In addition, the
Underwriter acknowledges that on the Closing Date immediately after the
transactions described herein it will be the owner of the Class R Certificates
for federal tax purposes, and the Underwriter covenants that it will not assert
in any proceeding that the transfer of the Class R Certificates from the Company
to the Underwriter should be disregarded for any purpose.
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 the Underwriter, and the Underwriter agrees to purchase from the
Company, the Certificates indicated on Schedule I hereto, which shall be
transferred by the Company to the Trustee) at a price equal to ___% of the
aggregate principal balance of the Certificates as of the Closing Date. There
will be added to the purchase price of the Certificates an amount equal to
interest accrued thereon from the Cut-off Date to but not including the Closing
Date. The purchase price for the Certificates was agreed to by the Company in
reliance upon the transfer from the Company to the Underwriter of the tax
liabilities associated with the ownership of the Class R Certificates.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Certificates shall
be made at the office of Xxxxxxx Xxxxxxxx & Xxxx at 10:00 a.m., New York time,
on ____________, 200__ or such later date as the Underwriter shall designate,
which date and time may be postponed by agreement between the Underwriter and
the Company (such date and time of delivery and payment for the Certificates
being herein called the "Closing Date"). Delivery of the Certificates (except
for the Class R Certificates (the "Definitive Certificates")) shall be made to
the Underwriter through the Depository Trust Company ("DTC") (such Certificates,
the "DTC Registered Certificates"), and delivery of the Definitive Certificates
shall be made in registered, certified form, in each case against payment by you
of the purchase price thereof to or upon the order of the Company by wire
transfer in immediately available funds. The Definitive Certificates shall be
registered in such names and in such denominations as you may request not less
than two business days in advance of the Closing Date. The Company agrees to
have the Definitive Certificates available for inspection, checking and
packaging by you in New York, New York not later than 1:00 p.m. on the business
day prior to the Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that the Underwriter propose to offer and/or
solicit offers for the Certificates to be purchased by them for sale to the
public as set forth in the Prospectus and the Underwriter agrees that all such
offers, solicitations and sales by them shall be made in compliance with all
applicable laws and regulations. Prior to the date of the first contract of sale
made based on the Definitive Free Writing Prospectus, you have not sold any
Certificate or any security backed by the Mortgage Loans, any interest in any
Certificate or such security or any Mortgage Loan.
4.2 It is understood that the Underwriter will solicit offers to
purchase the Certificates as follows:
(a) Prior to the time you have received the Definitive Free
Writing Prospectus you may, in compliance with the provisions of this
Agreement, solicit offers to purchase Certificates; provided, that you
shall not accept any such offer to purchase a Certificate or any interest
in any Certificate or Mortgage Loan or otherwise enter into any Contract of
Sale for any Certificate, any interest in any Certificate or any Mortgage
Loan prior to the investor's receipt of the Definitive Free Writing
Prospectus.
(b) Any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) relating to the Certificates used by an Underwriter in
compliance with the terms of this Agreement prior to the time such
Underwriter has entered into a Contract of Sale for Certificates shall
prominently set forth the following statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the
Definitive Free Writing Prospectus. This free
writing prospectus is being delivered to you
solely to provide you with information about the
offering of the Certificates referred to in this
free writing prospectus and to solicit an offer to
purchase the Certificates, when, as and if issued.
Any such offer to purchase made by you will not be
accepted and will not constitute a contractual
commitment by you to purchase any of the
Certificates until we have accepted your offer to
purchase Certificates. We will not accept any
offer by you to purchase Certificates, and you
will not have any contractual commitment to
purchase any of the Certificates until after you
have received the Definitive Free Writing
Prospectus. You may withdraw your offer to
purchase Certificates at any time prior to our
acceptance of your offer.
"Written Communication" has the same meaning as that term is
defined in Rule 405 of the 1933 Act Regulations.
(c) Any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) relating to the Certificates used by an Underwriter in
compliance with the terms of this Agreement prior to the time such
Underwriter has entered into a Contract of Sale for Certificates shall
prominently set forth the following statement:
The Certificates referred to in these materials
are being sold when, as and if issued. You are
advised that Certificates may not be issued that
have the characteristics described in these
materials. Our obligation to sell such
Certificates to you is conditioned on the mortgage
loans and certificates having the characteristics
described in these materials. If for any reason we
do not deliver such Certificates, we will notify
you, and neither the issuer nor any underwriter
will have any obligation to you to deliver all or
any portion of the Certificates which you have
committed to purchase, and none of the issuer nor
any underwriter will be liable for any costs or
damages whatsoever arising from or related to such
non-delivery.
4.3 It is understood that you will not enter into a Contract of Sale
with any investor until the investor has received the Definitive Free Writing
Prospectus. For purposes of this Agreement, Contract of Sale has the same
meaning as in Rule 159 of the 1933 Act Regulations and all Commission guidance
relating to Rule 159, including without limitation the Commission's statement in
Securities Act Release No. 33-8501 that "a contract of sale can occur under the
federal securities laws before there is a bilateral contract under state law,
for example when a purchaser has taken all actions necessary to be bound but a
seller's obligations remain conditional under state law." The Definitive Free
Writing Prospectus shall prominently set forth the following statement:
This Definitive Free Writing Prospectus supersedes
the information in any free writing prospectus
previously delivered in connection with this
offering, to the extent that this Definitive Free
Writing Prospectus is inconsistent with any
information in any free writing prospectus
previously delivered in connection with this
offering.
4.4 It is understood that you may prepare and provide to prospective
investors certain Free Writing Prospectuses (as defined below), subject to the
following conditions:
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, an Underwriter shall not convey
or deliver any Written Communication to any person in connection with the
initial offering of the Certificates, unless such Written Communication
either (i) is made in reliance on Rule 134 under the Act, (ii) constitutes
a prospectus satisfying the requirements of Rule 430B under the Act, (iii)
is the Definitive Free Writing Prospectus, or (iv) both (1) constitutes a
Free Writing Prospectus (as defined below) used in reliance on Rule 164 and
(2) includes only information that is within the definition of ABS
Informational and Computational Materials as defined in Item 1100 of
Regulation AB.
(b) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Free Writing Prospectuses,
including but not limited to Rules 164 and 433 of the 1933 Act Regulations
and all Commission guidance relating to Free Writing Prospectuses,
including but not limited to Commission Release No. 33-8591.
(c) For purposes hereof, "Free Writing Prospectus" shall have the
meaning given such term in Rules 405 and 433 of the 1933 Act Regulations.
"Issuer Information" shall mean information included in a Free Writing
Prospectus that both (i) is within the types of information specified in
clauses (1) to (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform) as shown in Exhibit I hereto and (ii) has been
either prepared by, or has been reviewed and approved by, the Company.
"Underwriter Derived Information" shall refer to information of the type
described in clause (5) of such footnote 271 when prepared by an
Underwriter.
(d) All Free Writing Prospectuses provided to prospective
investors, whether or not filed with the Commission, shall bear a legend on
each page including the following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT
(INCLUDING A PROSPECTUS) WITH THE SEC FOR THE
OFFERING TO WHICH THIS COMMUNICATION RELATES.
BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS
IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE
COMPLETE INFORMATION ABOUT THE ISSUER AND THE
OFFERING. YOU MAY GET THESE DOCUMENTS AT NO CHARGE
BY VISITING XXXXX ON THE SEC WEB SITE AT
XXX.XXX.XXX [AT AMERICAN XXXX.XXX, OR AT
UNDERWRITER'S WEBSITE]. ALTERNATIVELY, THE ISSUER,
ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE
OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS
AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE 1-8[XX-XXX-XXXX].
The Company shall have the right to require additional specific legends or
notations to appear on any Free Writing Prospectus, the right to require
changes regarding the use of terminology and the right to determine the
types of information appearing therein.
(e) The Underwriter shall deliver to the Company and its counsel,
no later than two business days prior to the proposed date of first use
thereof, (i) any Free Writing Prospectus prepared by or on behalf of the
Underwriter that contains any information that, if reviewed and approved by
the Company, would be Issuer Information, and (ii) any Free Writing
Prospectus or portion thereof that contains only a description of the final
terms of the Certificates after such terms have been established for all
classes of Certificates being publicly offered. No information in any Free
Writing Prospectus shall consist of information of a type that is not
included within the definition of ABS Informational and Computational
Materials. To facilitate filing to the extent required by Section 5.10 or
5.11, as applicable, all Underwriter Derived Information shall be set forth
in a document separate from the document including Issuer Information. The
Underwriter shall provide to the Company, for filing as provided in Section
5.10, copies (in such format as required by the Company) of all Free
Writing Prospectuses. All Free Writing Prospectuses described in this
subsection (e) must be approved by the Company before the Underwriter
provides the Free Writing Prospectus to investors pursuant to the terms of
this Agreement.
(f) Each Underwriter agrees that all information included in the
Free Writing Prospectuses shall be prepared, to the extent possible, based
on the information contained in the Registration Statement and anticipated
to be included in the Prospectus. None of the information in the Free
Writing Prospectuses may conflict with the information contained in the
Prospectus or the Registration Statement.
(g) The Company shall not be obligated to file any Free Writing
Prospectuses that have been determined to contain any material error or
omission, unless the Company is required to file the Free Writing
Prospectus pursuant to Section 5.10 below. In the event that an Underwriter
becomes aware that, as of the date on which an investor entered into an
agreement to purchase any Certificates, any Free Writing Prospectus
prepared by or on behalf of the Underwriter and delivered to such investor
contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements contained therein,
in light of the circumstances under which they were made, not misleading,
such Underwriter shall notify the Company thereof as soon as practical but
in any event within one business day after discovery.
(h) If the Underwriter does not provide any Free Writing
Prospectuses to the Company pursuant to subsection (e) above, the
Underwriter shall be deemed to have represented, as of the Closing Date,
that they did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission by the
Company as a Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) in accordance with the 1933 Act Regulations.
(i) In the event of any delay in the delivery by the Underwriter
to the Company of any Free Writing Prospectuses required to be delivered in
accordance with subsection (e) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to subsection (f)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing Date
and to take other appropriate actions in each case as necessary in order to
allow the Company to comply with its agreement set forth in Section 5.10 to
file the Free Writing Prospectuses by the time specified therein.
(j) Each Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the 1933 Act Regulations with respect to
the generation and use of Free Writing Prospectuses in connection with the
offering of the Certificates. In addition, each Underwriter shall, for a
period of at least three years after the date hereof, maintain written
and/or electronic records of the following:
(i) Any written communications in respect of the Certificates not
deemed a Prospectus or a Free Writing Prospectus because its content is
limited to the statements permitted by Rule 134 of the Securities Act;
(ii) any Free Writing Prospectus used to solicit offers to
purchase Certificates;
(iii) regarding each Free Writing Prospectus delivered to a
prospective investor, the date of such delivery and identity of such
prospective investor;
(iv) regarding each offer to purchase Certificates received by
such Underwriter, the identity of the offeror, the date the offer was made
and the proposed terms and allocation of the Certificates offered to be
purchased; and
(v) regarding each Contract of Sale entered into by such
Underwriter, the date, identity of the investor and the terms of such
Contract of Sale, including the amount and price of Certificates subject to
such Contract of Sale.
(k) Each Underwriter covenants with the Company that after the
final Prospectus is available such Underwriter shall not distribute any
written information concerning the Certificates to a prospective investor
unless such information is preceded or accompanied by the final Prospectus.
(l) Each Underwriter agrees to provide written notice to the
Company of the date it first enters into any Contract of Sale for a
Certificate.
4.5 Each Underwriter further agrees that on or prior to the sixth day
after the Closing Date, such Underwriter shall provide the Company with a
certificate, substantially in the form of Exhibit G attached hereto, setting
forth (i) in the case of each class of Certificates purchased by such
Underwriter, (a) if less than 10% of the aggregate principal balance or notional
amount, as applicable, of such class of Certificates has been sold to the public
as of such date, the value calculated pursuant to clause (b)(iii) of Exhibit G
hereto, or, (b) if 10% or more of such class of Certificates has been sold to
the public as of such date but no single price is paid for at least 10% of the
aggregate principal balance or notional amount, as applicable of such class of
Certificates, then the weighted average price at which the Certificates of such
class were sold expressed as a percentage of the principal balance or notional
amount, as applicable, of such class of Certificates sold, or (c) the first
single price at which at least 10% of the aggregate principal balance or
notional amount, as applicable, of such class of Certificates was sold to the
public, (ii) the prepayment assumption used in pricing such Certificates, and
(iii) such other information as to matters of fact as the Company may reasonably
request to enable it to comply with its reporting requirements with respect to
such Certificates to the extent such information can in the good faith judgment
of such Underwriter be determined by it.
4.6 Each Underwriter further agrees that (i) it will include in every
confirmation sent out the notice required by Rule 173 informing the investor
that the sale was made pursuant to the Registration Statement and that the
investor may request a copy of the Prospectus from such Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such Prospectus;
(iii) if an electronic copy of the Prospectus is delivered by an Underwriter for
any purpose, such copy shall be the same electronic file containing the
Prospectus in the identical form transmitted electronically to such Underwriter
by or on behalf of the Company specifically for use by such Underwriter pursuant
to this Section 4.6; for example, if the Prospectus is delivered to an
Underwriter by or on behalf of the Company in a single electronic file in .pdf
format, then such Underwriter will deliver the electronic copy of the Prospectus
in the same single electronic file in .pdf format; and (iv) it has not used, and
during the period for which it has an obligation to deliver a "prospectus" (as
defined in Section 2(a)(10) of the Act) relating to the Certificates (including
any period during which you have such delivery obligation in its capacity as a
"dealer" (as defined in Section 2(a)(12) of the Act)) it will not use any
internet website or electronic media containing information for prospective
investors, including any internet website or electronic media maintained by
third parties, in connection with the offering of the Certificates, except in
compliance with applicable laws and regulations. Each Underwriter further agrees
that (i) if it delivers to an investor the Prospectus in .pdf format, upon such
Underwriter's receipt of a request from the investor within the period for which
delivery of the Prospectus is required, such Underwriter will promptly deliver
or cause to be delivered to the investor, without charge, a paper copy of the
Prospectus and (ii) it will provide to the Company any Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements.
4.7 In the event that an Underwriter uses a road show (as defined in
Rule 433) in connection with the offering of the Certificates, all information
in the road show will be provided orally only, and not as a Written
Communication. Each Underwriter agrees that any slideshow used in connection
with a road show (i) will only be provided as part of the road show and not
separately, (ii) if handed out at any meeting as a hard copy, will be retrieved
prior to the end of the meeting, and (iii) will otherwise be used only in a
manner that does not cause the slideshow to be treated as a Free Writing
Prospectus.
5. AGREEMENTS. The Company agrees with the Underwriter that:
5.1 The Company will promptly advise the Underwriter (i) when any
amendment to the Registration Statement has become effective or any revision of
or supplement to the Prospectus has been so filed (unless such amendment,
revision or supplement does not relate to the Certificates), (ii) of any request
by the Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information (unless such request for additional
information does not relate to the Certificates or the trust), (iii) of any
written notification received by the Company of the suspension of qualification
of the Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or, to the knowledge of the Company, the
threatening of any proceeding for that purpose. Before amending or supplementing
the Registration Statement or the Prospectus with respect to the Certificates,
the Company will furnish the Underwriter with a copy of each such proposed
amendment or supplement. 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.
5.2 The Company will cause the Prospectus Supplement to be transmitted
to the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule. The Company will cause the Prospectus Supplement to be transmitted to the
Commission for filing no later than the close of business on the business day
prior to the Closing Date.
5.3 If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Underwritten
Securities is required to be delivered under the Act, any event occurs as a
result of which it is necessary to amend or supplement the Prospectus, as then
amended or supplemented, in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the 1933 Act Regulations, the Company promptly will
prepare and furnish, at its own expense, to the Underwriter, and will file with
the Commission, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with the Act or the 1933 Act
Regulations.
5.4 If any Written Communication or oral statement in connection with
the offering of the Certificates contains an untrue statement of material fact
or omits to state a material fact necessary to make the statements, in light of
the circumstances under which they were made, not misleading at the time that a
Contract of Sale was entered into, when taken together with all information that
was conveyed to any person with whom a Contract of Sale was entered into, then
the Underwriter shall provide any such person with the following:
(a) Adequate disclosure of the contractual arrangement;
(b) Adequate disclosure of the person's rights under the existing
Contract of Sale at the time termination is sought;
(c) Adequate disclosure of the new information that is necessary
to correct the misstatements or omissions in the information given at the
time of the original Contract of Sale; and
(d) A meaningful ability to elect to terminate or not terminate
the prior Contract of Sale and to elect to enter into or not enter into a
new Contract of Sale.
5.5 The Company will furnish to you, without charge, a copy of the
Registration Statement (including 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 Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request; provided,
however, that you will provide the notice specified in Section 4.6 in every
confirmation and will only deliver the prospectus to those investors that
request a paper copy thereof.
5.6 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as the Underwriter shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to deliver to the
Underwriter (i) the annual statement as to compliance delivered to the Trustee
pursuant to Section 3.19 of the Pooling and Servicing Agreement and Section 3.10
of the Servicing Agreement, and (ii) the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section 3.20
of the Pooling and Servicing Agreement and 3.11 of the Servicing Agreement, as
soon as such statements are furnished to the Company.
5.7 The Company will endeavor to arrange for the qualification of the
Certificates for sale and determination of their eligibility for investment
under the laws of such jurisdictions as the Underwriter may reasonably designate
and will maintain such qualification in effect so long as required for the
initial distribution of the 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.
5.8 If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid at or prior to the Closing
all expenses incident to the performance of the obligations of the Company under
this Agreement, and will reimburse the Underwriter for any reasonable expenses
(including reasonable fees and disbursements of counsel and accountants)
reasonably incurred by the Underwriter in connection with the purchase and sale
of the Certificates (including without limitation the fees and disbursements of
the Underwriter's counsel and the Underwriter's due diligence costs and expenses
with respect thereto) and the transactions contemplated hereby and thereby, and
the qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Underwriter have reasonably requested pursuant to Section 5.7 above and the
printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Certificates, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Certificates,
if applicable, and for expenses incurred in distributing the Prospectus
(including any amendments and supplements thereto) to the Underwriter. Except as
herein provided, the Underwriter shall be responsible for paying all costs and
expenses incurred by you, including the fees and disbursements of your counsel,
in connection with the purchase and sale of the Certificates.
5.9 If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the Act, the
Company receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Certificates is
in effect, the Company will advise the Underwriter of the issuance of such stop
order. Upon receipt of notice of such stop order, the Underwriter shall cease
all offers and sales of the Certificates.
5.10 The Company shall file any Free Writing Prospectus prepared by
the Company (including the Definitive Free Writing Prospectus), and any Issuer
Information contained in any Free Writing Prospectus provided to it by the
Underwriter under Section 4.4(e), not later than the date of first use of such
Free Writing Prospectus, except that:
(a) As to any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms of the
Certificates after such terms have been established for all classes of
Certificates being publicly offered, such Free Writing Prospectus or
portion thereof may be filed by the Company within two days of the later of
the date such final terms have been established for all classes of
Certificates being publicly offered and the date of first use; and
(b) Notwithstanding clause (a) above, as to any Free Writing
Prospectus or portion thereof required to be filed that contains only
information of a type included within the definition of ABS Informational
and Computational Materials, the Company shall file such Free Writing
Prospectus or portion thereof within the later of two business days after
the Underwriter first provides this information to investors and the date
upon which the Company is required to file the Prospectus Supplement with
the Commission pursuant to Rule 424(b)(3) of the Act.
provided further, that prior to such use of any Free Writing Prospectuses by the
Company, the Underwriter must comply with their obligations pursuant to Section
4.4 and that the Company shall not be required to file any Free Writing
Prospectus that does not contain substantive changes from or additions to a Free
Writing Prospectus previously filed with the Commission.
5.11 The Underwriter shall file any Free Writing Prospectus that has
been distributed by the Underwriter in a manner that could lead to its broad,
unrestricted dissemination not later than the date of first use, provided that
if that Free Writing Prospectus contains only information of a type included
within the definition of ABS Informational and Computational Materials then such
filing shall be made within the later of two business days after the Underwriter
first provide this information to investors and the date upon which the Company
is required to file the Prospectus Supplement with the Commission pursuant to
Rule 424(b)(3) of the Act; provided further, that the Company shall not be
required to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed with the
Commission.
5.12 During the period when a prospectus is required by law to be
delivered in connection with the sale of the Certificates pursuant to this
Agreement, the Issuer will file or cause to be filed, on a timely and complete
basis, all documents that are required to be filed by the Issuer with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act (as defined
below).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The Underwriter's
obligation to purchase the Certificates in the respective amounts set forth
opposite their names on Schedule I attached hereto shall be subject to the
following additional conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission or by
any authority administering any state securities or Blue Sky law; and the
Prospectus Supplement shall have been filed or transmitted for filing, by means
reasonably calculated to result in a filing with the Commission pursuant to Rule
424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the business or properties of the Company, the Seller or any of their
respective affiliates the effect of which, in any case, is, in that
Underwriter's reasonable judgment, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
Certificates as contemplated by the Registration Statement and the Prospectus.
All actions required to be taken and all filings required to be made by the
Issuer under the Act and the Exchange Act prior to the sale of the Certificates
shall have been duly taken or made.
6.3 The Company shall have delivered to the Underwriter a certificate,
dated the Closing Date, of the President, an Executive Vice President, a Senior
Vice President or a Vice President of the Company to the effect that the signer
of such certificate has examined this Agreement, the Prospectus, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement, the Trust Agreement
and various other closing documents, and that, to the best of his or her
knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct
in all material respects;
(b) the Company has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date;
(c) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated;
(d) subsequent to the respective dates as of which information is
given in the Prospectus, and except as set forth or contemplated in the
Prospectus, there has not been any material adverse change in the general
affairs, business, key personnel, capitalization, financial condition or
results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no
actions, suits or proceedings pending before any court or governmental
agency, authority or body or, to their knowledge, threatened, against the
Company or the Seller that could reasonably have a material adverse affect
on (i) the Company or the Seller or (ii) the transactions contemplated by
this Agreement; and
(f) attached thereto are true and correct copies of a letter or
letters from one or more nationally recognized statistical rating agencies
confirming that the Certificates have been rated in one of the four highest
grades by each of such agencies rating that class of Certificates and that
such rating has not been lowered since the date of such letter.
6.4 The Company shall have delivered to the Underwriter a certificate,
dated the Closing Date, of the President, an Executive Vice President, a
Managing Director or a Director of the Company to the effect that the signer of
such certificate has examined the Pooling and Servicing Agreement, the Mortgage
Loan Purchase Agreement, the Trust Agreement and this Agreement and that, to his
or her knowledge after reasonable investigation, the representations and
warranties of the Company contained in this Agreement are true and correct in
all material respects.
6.5 The Seller shall have delivered to the Underwriter a certificate,
dated the Closing Date, of the President, a Managing Director or a Director of
the Seller to the effect that the signer of such certificate has examined the
Mortgage Loan Purchase Agreement and that, to his or her knowledge after
reasonable investigation, the representations and warranties of the Seller
contained in the Mortgage Loan Purchase Agreement are true and correct in all
material respects.
6.6 You shall have received the opinion and letter of Xxxxxxx Xxxxxxxx
& Xxxx LLP, counsel for the Company and the Seller, dated the Closing Date and
substantially to the effect set forth in Exhibit A and Exhibit B [NOTE: Exhibit
B will be revised to address the Definitive Free Writing Prospectus].
6.7 You shall have received from counsel for the Underwriter, an
opinion dated the Closing Date in form and substance satisfactory to the
Underwriter.
6.8 (i) You shall have received from Deloitte & Touche LLP, certified
public accountants, a letter addressed to the Underwriter and dated the date
hereof and satisfactory in form and substance to the Underwriter and the
Underwriter's counsel, to the effect that they have performed certain specified
procedures, all of which have been agreed to by the Underwriter, as a result of
which they determined that certain information of an accounting, financial or
statistical nature set forth in the Prospectus Supplement under the captions
"The Mortgage Pool" and "Description of the Grantor Trust Certificates" agrees
with the records of the Company and the Seller excluding any questions of legal
interpretation.
(ii) At the Closing Date, Deloitte & Touche LLP and/or any other firm
of certified independent public accountants acceptable to you shall have
furnished to you a letter, addressed to you, and in form and substance
satisfactory to you in all respects, relating to the extent such information is
not covered in the letter or letters provided pursuant to Section 6.8(i), to the
characteristics of the mortgage loans, as presented in the Prospectus
Supplement.
6.9 The Certificates shall have been rated "AAA" by [each of]
[Standard & Poor's Ratings Services] and [Fitch Ratings] and "Aaa" by [Xxxxx'x
Investors Service, Inc.].
6.10 You shall have received the opinion of [Trustee's Counsel], dated
the Closing Date, substantially to the effect set forth in Exhibit C.
6.11 You shall have received from Xxxxxxx Xxxxxxxx & Xxxx LLP, special
counsel to the Company, and from in-house counsel to the Company, reliance
letters with respect to any opinions delivered to [Standard & Poor's Ratings
Services] and [Fitch Ratings] and [Xxxxx'x Investors Service, Inc.].
The Company will furnish you with conformed copies of the above
opinions, certificates, letters and documents as you reasonably request.
If any of the conditions specified in this Article 6 shall not have
been fulfilled in all material respects when and as provided in 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 substance to the Underwriter, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriter. Notice of such cancellation shall be given to the
Company in writing, or by telephone or telegraph confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls an Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), from and against any and all losses,
claims, damages and liabilities (including reasonable legal or other expenses)
to which you or any such person may become subject under the Act or the Exchange
Act, or otherwise, insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Definitive Free Writing
Prospectus, or in any Issuer Information contained in any other Free Writing
Prospectus, or in any Underwriter Derived Information to the extent caused by
any material error in the Pool Information, or in the Registration Statement for
the registration of the Certificates as originally filed or in any amendment
thereof or other filing incorporated by reference therein, or in the Prospectus
or incorporated by reference therein (if used within the period set forth in
Section 5.3 hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or arise out of or are based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon any
information with respect to which the Underwriter has agreed to indemnify the
Company pursuant to Section 7.2. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
7.2 The Underwriter agree, severally and not jointly, to indemnify and
hold harmless the Company, its respective directors or officers and any person
controlling the Company to the same extent as the indemnity set forth in Section
7.1 above from the Company to the Underwriter, but only with respect to (i) the
Underwriter's Information and the Decrement/Yield Tables, (ii) any Underwriter
Derived Information, except to the extent of any errors in any Underwriter
Derived Information that are caused by errors in the Pool Information, (iii) any
Free Writing Prospectus for which the conditions set forth in Section 4.4(e)
above are not satisfied with respect to the prior approval by the Company, (iv)
any portion of any Free Writing Prospectus (other than the Definitive Free
Writing Prospectus) not constituting Issuer Information, (v) any liability
resulting from your failure to provide any investor with the Definitive Free
Writing Prospectus prior to entering into a Contract of Sale with such investor
or failure to file any Free Writing Prospectus required to be filed by the
Underwriter in accordance with Section 5.11, and (vi) any liability resulting
from your failure to comply with Section 4.7 in connection with any road show.
This indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have.
The Company acknowledges that the Underwriter's Information and the
Decrement/Yield Tables constitute the only information furnished in writing by
or on behalf of the Underwriter expressly for use in the Registration Statement
or the Prospectus or in any amendment thereof or supplement thereto, as the case
may be.
7.3 In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 7.1 or 7.2, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the reasonable fees and expenses of such counsel shall be at the
expense of such indemnified party unless (1) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. In any case described in subclauses
(i) or (ii) of the immediately preceding sentence, the reasonable fees and
disbursements of counsel for the indemnified party shall be paid by the
indemnifying party. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
for all such indemnified parties. Such firm shall be designated in writing by
you, in the case of parties indemnified pursuant to Section 7.1 and by the
Company, in the case of parties indemnified pursuant to Section 7.2. The
indemnifying party may, at its option, at any time upon written notice to the
indemnified party, assume the defense of any proceeding and may designate
counsel reasonably satisfactory to the indemnified party in connection therewith
provided that the counsel so designated would have no actual or potential
conflict of interest in connection with such representation. Unless it shall
assume the defense of any proceeding the indemnifying party shall not be liable
for any settlement of any proceeding, effected without its written consent (such
consent not to be unreasonably withheld or delayed), but if settled with such
consent or if there shall be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. If the
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such
settlement provides for release of the indemnified party in connection with all
matters relating to the proceeding which have been asserted against the
indemnified party in such proceeding by the other parties to such settlement,
without the consent of the indemnified party. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement does not
include a statement as to or admission of, fault, culpability or a failure to
act by or on behalf of any such indemnified party and such settlement includes
an unconditional release of the indemnified party from all liability arising out
of the action or claim related to such proceeding.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages, expenses or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, expenses or
liabilities, in such proportion as is appropriate to reflect (i) the relative
benefits received by the Company on the one hand and the Underwriter on the
other from the offering of the Certificates or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriter on the other in connection with the statements or omissions or
alleged statements or alleged omissions which resulted in such losses, claims,
damages, expenses or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand,
and by the Underwriter on the other shall be in the same proportions that the
purchase price paid by the Underwriter to the Company for the Certificates ("Net
Proceeds") bears to the excess of (a) the purchase prices paid by investors to
the Underwriter for the Certificates (the "Public Offering Price") over (b) Net
Proceeds. The relative fault of the Company on the one hand and of any
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
7.5 The Company and the 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 considerations referred to in Section 7.4, above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim and any and all amounts paid in settlement of any claim of
litigation except where the indemnified party is required to bear such expenses
pursuant to Section 7.4; which expenses the indemnifying party shall pay as and
when incurred, at the request of the indemnified party, to the extent that the
indemnifying party believes that it will be ultimately obligated to pay such
expenses. 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 aggregate Public Offering Price of the Certificates underwritten by
such Underwriter and distributed to the public by such Underwriter exceeds the
Net Proceeds with respect to such Underwriter. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment. 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.
7.6 The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless (i) any
termination of this Agreement, (ii) any investigation made by the Underwriter or
on behalf of the Underwriter or any person controlling the Underwriter or by or
on behalf of the Company and its respective directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Certificates.
8. TERMINATION. (a) This Agreement shall be subject to termination by
notice given to the Company, if the sale of the Certificates provided for herein
is not consummated because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform their respective
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 8, the Company will reimburse you for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel
and accountants) that shall have been reasonably incurred by the Underwriter in
connection with the proposed purchase and sale of the Certificates and such
termination and reimbursement.
(b) The Underwriter shall have the right to terminate this Agreement
at any time prior to the Closing Date by notice given to the Company (i) if any
domestic or international event or act or occurrence has materially disrupted
the securities markets, (ii) if trading on the New York or American Stock
Exchanges shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required on the New York or American Stock Exchanges by the New York or
American Stock Exchanges or by order of the Commission or any other governmental
authority having jurisdiction, (iii) if a banking moratorium has been declared
by a state or Federal authority, (iv) if a banking moratorium in foreign
exchange trading by major international banks or persons has been declared, (v)
if any new restriction materially and adversely affecting the distribution of
the Certificates shall have become effective, or (vi) there shall have occurred
any outbreak or escalation of hostilities or other calamity or crisis the effect
of which on the financial markets is such as to make it, in your reasonable
judgment, impracticable to market the Certificates on the terms specified in
this Agreement. Any notice of termination pursuant to this Section 8(b) shall be
by telephone, telex, or telegraph, confirmed in writing by letter.
9. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the officers of any of the Company, and the Underwriter set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
the Underwriter or on its behalf or made by or on behalf of the Company or any
of its respective officers, directors or controlling persons, and will survive
delivery of and payment for the Certificates and any termination of this
Agreement.
10. ADDITIONAL UNDERWRITING OF THE CERTIFICATES. Each Underwriter agrees
that in connection with any subsequent underwriting of the non-underwritten
Certificates acquired from the Company or its affiliates, the Underwriter:
(a) Will enter into an underwriting agreement with the Company
substantially similar to this Agreement;
(b) Will provide a copy of the Prospectus Supplement, together with any
intervening amendments thereof and supplements thereto, and copies of
all remittance reports to investors in the non-underwritten
Certificates, together with any additional disclosure mutually
agreeable to the Underwriter and the Company; and
(c) Will not require an underwriting fee.
11. In connection with any subsequent underwriting, the Company shall
provide to the Underwriter any additional documentation, letters or opinions as
it may reasonably require, including, without limitation, letters and opinions
provided by counsel to the Issuer updated to reflect the subsequent
underwriting.
12. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter will be mailed, delivered or
telegraphed and confirmed to you at [_______________________________________],
Attention: _______________________or if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at
[______________________________________________________].
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
principles governing conflicts of law.
15. COUNTERPARTS. This Agreement may be executed 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 us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement between the Company and you.
Very truly yours,
MORTGAGEIT SECURITIES CORP.
By:
-------------------------------------
Name:
Title: Chief Executive Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
[NAME OF UNDERWRITER]
--------------------------------------
By:
-----------------------------------------
Name:
Title:
EXHIBIT A
[CLOSING OPINION OF XXXXXXX XXXXXXXX & XXXX LLP]
______________ ___, ____
MortgageIT Securities Corp. [Underwriter]
[Address] ___________________________
___________________________
[Name of Master Servicer] [Trustee]
[Address of Master Servicer] ___________________________
___________________________
Opinion: Underwriting Agreement
MortgageIT Securities Corp.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-__
Ladies and Gentlemen:
We have acted as counsel to MortgageIT Securities Corp. (the "Company") in
connection with the issuance and sale by the Company of Mortgage Pass-Through
Certificates, Series ____- ____ (the "Certificates"), pursuant to the Pooling
and Servicing Agreement, dated as of _______________ 1, ____ (the "Pooling and
Servicing Agreement"), among the Company, [Name of Master Servicer], as master
servicer (the "Master Servicer") and [Name of Trustee], as trustee (the
"Trustee"). The Certificates consist of ____________ classes designated as Class
A and Class R (collectively, the "Senior Certificates") and ____________ classes
of subordinated certificates designated as Class M and Class B. Only the Senior
Certificates and the Class M Certificates (collectively, the "Offered
Certificates") are being offered under the Prospectus, dated __________, _____,
and the Prospectus Supplement, dated _________, ____ (the Prospectus Supplement
together with the Prospectus, the "Prospectus").
The Senior Certificates in the aggregate and the Class M Certificates will
evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting primarily of a pool of one- to four-family first mortgage
loans (the "Mortgage Loans") held by [Name of Custodian], as custodian (the
"Custodian"), pursuant to the Custodial Agreement, dated as of _______________
1, ____, among the Company, the Master Servicer, the Custodian and the Trustee
(the "Custodial Agreement"). ______________________ (the "Purchaser") acquired
the Mortgage Loans through its mortgage loan purchase program from various
seller/servicers. The Purchaser transferred the Mortgage Loans to the Company
pursuant to the Assignment and Assumption Agreement, dated _________ __, ____
(the "Assignment and Assumption Agreement"), in exchange for immediately
available funds, and the Class M and Class B Certificates. The Company will sell
the Class A and the Class R Certificates other than a de minimis portion thereof
(the "Underwritten Certificates") to _______________________ (the
"Underwriter"), pursuant to the Underwriting Agreement, dated _____________ __,
____, between the Company and the Underwriter (the "Underwriting Agreement"; the
Pooling and Servicing Agreement, the Custodial Agreement, the Underwriting
Agreement and the Assignment and Assumption Agreement, collectively, the
"Agreements"). Capitalized terms not defined herein have the meanings ascribed
to them in the Agreements. This opinion letter is rendered pursuant to Section
6.4 of the Underwriting Agreement.
In rendering this opinion letter, we have examined the documents described
above and such other documents as we have deemed necessary including, where we
have deemed appropriate, representations or certifications of officers of
parties thereto or public officials. In rendering this opinion letter, except
for the matters that are specifically addressed in the opinions expressed below,
we have assumed (i) the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents submitted to us
as copies, (ii) the necessary entity formation and continuing existence in the
jurisdiction of formation, and the necessary licensing and qualification in all
jurisdictions, of all parties to all documents, (iii) the necessary
authorization, execution, delivery and enforceability of all documents, and the
necessary entity power with respect thereto and (iv) that there is not any other
agreement that modifies or supplements the agreements expressed in the documents
to which this opinion letter relates and that renders any of the opinions
expressed below inconsistent with such documents as so modified or supplemented.
In rendering this opinion letter, we have made no inquiry, have conducted no
investigation and assume no responsibility with respect to (a) the accuracy of
and compliance by the parties thereto with the representations, warranties and
covenants contained in any document or (b) the conformity of the underlying
assets and related documents to the requirements of the agreements to which this
opinion letter relates.
Our opinions set forth below with respect to the enforceability of any
right or obligation under any agreement are subject to (i) general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealings and the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law,
(ii) the effect of certain laws, regulations and judicial and other decisions
upon the availability and enforceability of certain covenants, remedies and
other provisions, including the remedies of specific performance and self-help
and provisions imposing penalties and forfeitures and waiving objections to
venue and forum, (iii) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties and
(iv) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of any agreement which purport or are construed to provide
indemnification with respect to securities law violations. Wherever we indicate
that our opinion with respect to the existence or absence of facts is based on
our knowledge, our opinion is based solely on the current actual knowledge of
the attorneys in this firm who are involved in the representation of parties to
the transactions described herein. In that regard we have conducted no special
or independent investigation of factual matters in connection with this opinion
letter.
In rendering this opinion letter, we do not express any opinion concerning
any law other than the federal laws of the United States, the laws of the State
of New York and the [laws of the State of Delaware]. We do not express any
opinion with respect to the securities laws of any jurisdiction or any other
matter not specifically addressed in the opinions expressed below.
Based upon and subject to the foregoing, it is our opinion that:
1. The Registration Statement has become effective under the 1933 Act, and,
to our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, and no proceedings for that purpose
have been instituted or threatened under Section 8(d) of the 1933 Act.
2. The Registration Statement as of the date of the Prospectus Supplement
and the date hereof, and the Prospectus as of the date of the Prospectus
Supplement and the date hereof, other than any financial or statistical
information, Computational Materials and ABS Term Sheets contained or
incorporated by reference therein, as to which we express no opinion herein,
complied as to form in all material respects with the requirements of the Act
and the applicable rules and regulations thereunder.
3. To our knowledge, there are no material contracts, indentures or other
documents of a character required to be described or referred to in either the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement, other than Computational Materials and ABS Term Sheets
as to which we express no opinion herein, and those described or referred to
therein or filed or incorporated by reference as exhibits thereto.
4. The statements made in the Prospectus under the heading "Description of
the Securities," insofar as such statements purport to summarize certain
provisions of the Offered Certificates and the Pooling and Servicing Agreement,
provide a fair summary of such provisions. The statements made in the Basic
Prospectus and the Prospectus Supplement, as the case may be, under the headings
"Federal Income Tax Consequences," "Certain Legal Aspects of Mortgage
Loans--Applicability of Usury Laws" and "--Alternative Mortgage Instruments" 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 Offered
Certificates, are correct in all material respects with respect to those
consequences or matters that are discussed therein.
5. The Offered Certificates, assuming the execution, authentication and
delivery thereof in accordance with the Pooling and Servicing Agreement and the
delivery thereof and payment therefor in accordance with the Underwriting
Agreement, are validly issued and outstanding and are entitled to the benefits
of the Pooling and Servicing Agreement.
6. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended. The Trust Fund created by the
Pooling and Servicing Agreement is not an "investment company" or "controlled
by" an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
7. The Class A Certificates will be "mortgage related securities" as
defined in Section 3(a)(41) of the 1934 Act, as amended, so long as such class
is rated in one of the two highest rating categories by at least one "nationally
recognized statistical rating organization" as that term is used in that
Section.
8. Assuming compliance with the provisions of the Pooling and Servicing
Agreement, for federal income tax purposes, REMIC I and REMIC II will each
qualify as a real estate mortgage investment conduit ("REMIC") within the
meaning of Sections 860A through 860G (the "REMIC Provisions") of the Internal
Revenue Code of 1986, the Class R-I Certificates will constitute the sole class
of "residual interests" in REMIC I, each class of Offered Certificates will
represent ownership of "regular interests" in REMIC II and will generally be
treated as debt instruments of REMIC II and the Class R-II Certificates will
constitute the sole class of "residual certificates" in REMIC II, within the
meaning of the REMIC Provisions in effect on the date hereof.
9. Assuming compliance with the provisions of the Pooling and Servicing
Agreement, for City and State of New York income and corporation franchise tax
purposes, REMIC I and REMIC II will each be classified as a REMIC and not as a
corporation, partnership or trust, in conformity with the federal income tax
treatment of the Trust Fund. Accordingly, REMIC I and REMIC II will be exempt
from all City and State of New York taxation imposed on its income, franchise or
capital stock, and its assets will not be included in the calculation of any
franchise tax liability.
This opinion letter is rendered for the sole benefit of each addressee
hereof, and no other person or entity is entitled to rely hereon. Copies of this
opinion letter may not be made available, and this opinion letter may not be
quoted or referred to in any other document made available, to any other person
or entity except to (i) any applicable rating agency, credit enhancer or
governmental authority, (ii) any accountant or attorney for any person or entity
entitled hereunder to rely hereon or to whom or which this opinion letter may be
made available as provided herein or (iii) as otherwise required by law.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx & Xxxx LLP
EXHIBIT B
[10B-5 LETTER OF XXXXXXX XXXXXXXX & XXXX LLP]
______________ ___, ____
Supplemental Letter: Underwriting Agreement
MortgageIT Securities Corp.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-_____
Ladies and Gentlemen:
We have acted as counsel to MortgageIT Securities Corp. (the "Company") in
connection with the issuance and sale by the Company of Mortgage Pass-Through
Certificates, Series ____- ____ (the "Certificates"), pursuant to the Pooling
and Servicing Agreement, dated as of _______________ 1, ____ (the "Pooling and
Servicing Agreement"), among the Company, [Name of Master Servicer], as master
servicer (the "Master Servicer") and [Name of Trustee], as trustee (the
"Trustee"). The Certificates consist of ____________ classes designated as Class
A and Class R (collectively, the "Senior Certificates") and ____________ classes
of subordinated certificates designated as Class M and Class B. Only the Senior
Certificates and the Class M Certificates (collectively, the "Offered
Certificates") are being offered under the Prospectus, dated __________, _____,
and the Prospectus Supplement, dated _________, ____ (the Prospectus Supplement
together with the Prospectus, the "Prospectus").
The Senior Certificates in the aggregate and the Class M Certificates will
evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting primarily of a pool of one- to four-family first mortgage
loans (the "Mortgage Loans") held by [Name of Custodian], as custodian (the
"Custodian"), pursuant to the Custodial Agreement, dated as of _______________
1, ____, among the Company, the Master Servicer, the Custodian and the Trustee
(the "Custodial Agreement"). [Name of Purchaser] (the "Purchaser") acquired the
Mortgage Loans through its mortgage loan purchase program from various
seller/servicers. The Purchaser transferred the Mortgage Loans to the Company
pursuant to the Assignment and Assumption Agreement, dated _________ __, ____
(the "Assignment and Assumption Agreement"), in exchange for immediately
available funds, and the Class M and Class B Certificates. The Company will sell
the Class A and the Class R Certificates other than a de minimis portion thereof
(the "Underwritten Certificates") to [Name of Underwriter] (the "Underwriter"),
pursuant to the Underwriting Agreement, dated _____________ __, ____, between
the Company and the Underwriter (the "Underwriting Agreement"; the Pooling and
Servicing Agreement, the Custodial Agreement, the Underwriting Agreement and the
Assignment and Assumption Agreement, collectively, the "Agreements").
Capitalized terms not defined herein have the meanings ascribed to them in the
Agreements. This opinion letter is rendered pursuant to Section 6.4 of the
Underwriting Agreement.
The primary purpose of our professional engagement was to advise with
respect to legal matters and not to establish factual matters. Many
determinations involved in the preparation of the Prospectus Supplement were
factual. However, at the request of the Seller we reviewed the information
contained in the Prospectus Supplement (other than the information presented in
tabular form) under the captions "Summary of Prospectus Supplement--the Mortgage
Loans," "Risk Factors" and "The Mortgage Pool" (collectively, the
"Information"). We were not engaged to and did not review any other portion of
the Prospectus Supplement or any portion of the Prospectus, and we did not
prepare any of the documents evidencing, or close, any of the Mortgage Loans.
We have not otherwise undertaken any procedures that were intended or
likely to elicit information concerning the accuracy, completeness or fairness
of the Information other than as provided below. We are not otherwise advising
in this letter with respect to the accuracy, completeness or fairness of
statistical, accounting or other financial information contained in the
Information or not contained in the Information and from which the Information
was derived. It is our position that we are not "experts" within the meaning of
Section 11 of the Securities Act of 1933, or "persons" within the meaning of
Section 11(a)(4) thereof, with respect to any portion of the Prospectus
Supplement or the Prospectus, including without limitation such accounting,
financial and statistical information.
Based upon and subject to the foregoing, this is to inform you that no
information has come to the attention of the attorneys in this firm who are
involved in the representation of the Seller in this matter that causes us to
believe that the Information, as of the date of the Prospectus Supplement or
hereof, contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
This letter is rendered for the sole benefit of each addressee hereof, and
no other person or entity is entitled to rely hereon. Copies of this letter may
not be made available, and this letter may not be quoted or referred to in any
other document made available, to any other person or entity except to (i) any
applicable rating agency, credit enhancer or governmental authority, (ii) any
accountant or attorney for any person or entity entitled hereunder to rely
hereon or to whom or which this letter may be made available as provided herein
or (iii) as otherwise required by law.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx & Xxxx LLP
EXHIBIT C-1
[OPINION OF TRUSTEE'S COUNSEL]
______________ ___, ____
MortgageIT Securities Corp. [Underwriter]
[Address] ___________________________
___________________________
[Name of Master Servicer] [Trustee]
[Address of Master Servicer] ___________________________
___________________________
Re: MortgageIT Securities Corp.
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES ____-__
Ladies and Gentlemen:
In connection with the issuance of the above-referenced Certificates
pursuant to the Pooling and Servicing Agreement, dated as of ____________ 1,
_____ (the "Pooling and Servicing Agreement"), among MortgageIT Securities
Corp., as Company, [Name of Master Servicer], as Master Servicer and [Name of
Trustee], as Trustee (the "Trustee"), we have been asked to furnish this
opinion. Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Pooling and Servicing Agreement.
In arriving at the opinions expressed below, we have examined and relied
upon the originals or copies, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement and of such documents,
instruments and certificates, and we have made such investigations of law, as we
have deemed appropriate as the basis for the opinions expressed below. We have
assumed but have not verified that the signatures on all documents that we have
examined are genuine and that each person signing each such document was duly
authorized to sign such document on behalf of the person or entity purported to
be bound thereby.
Based on the foregoing, we are of the opinion that:
1. The Trustee has full corporate power and authority to execute and
deliver the Pooling and Servicing Agreement, the Custodial Agreement
and the Certificates and to perform its obligations under the Pooling
and Servicing Agreement and the Custodial Agreement.
2. Each of the Pooling and Servicing Agreement and the Custodial
Agreement has been duly authorized, executed and delivered by the
Trustee, and the Trustee has duly executed and delivered the
Certificates as provided in the Pooling and Servicing Agreement.
3. The Pooling and Servicing Agreement is a legal, valid and binding
obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, receivership and similar laws
affecting the rights of creditors generally, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforcement is considered in a proceeding at law or in equity.
We express no opinion as to the laws of any jurisdiction other than the
laws of the State of New York.
We are furnishing this opinion to you solely for your benefit. This opinion
may not be used, circulated, quoted or otherwise referred to for any other
purpose.
Very truly yours,
_________________________
EXHIBIT D
Underwriter's Information
EXHIBIT E
[Reserved]
EXHIBIT F
[Reserved]
EXHIBIT G
December [__]. 2006
MortgageIT Securities Corp.
[Address]
Re: MortgageIT Securities Corp.,
Mortgage Pass-Through Certificates,
Series 200_-__,Class A and Class R
Pursuant to Section 4 of the Underwriting Agreement, dated _______________
200_, between MortgageIT Securities Corp. and ________________________ (the
"Underwriter") relating to the Certificates referenced above (the "Underwriting
Agreement"), the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was __% SPA.
(b) Set forth below is (i), the first price, as a percentage of the principal
balance of each class of Certificates, in which 10% of the aggregate
principal balance of each such class of Certificates was sold to the public
at a single price, if applicable, or (ii) if more than 10% of a class of
Certificates have been sold to the public but no single price is paid for
at least 10% of the aggregate principal balance of such class of
Certificates, then the weighted average price at which the Certificates of
such class were sold expressed as a percentage of the principal balance of
such class of Certificates, or (iii) if less than 10% of the aggregate
principal balance of a class of Certificates has been sold to the public,
the purchase price for each such class of Certificates paid by the
Underwriter expressed as a percentage of the principal balance of such
class of Certificates calculated by: (1) estimating the fair market value
of each such class of Certificates as of ___________________________, 200_;
(2) adding such estimated fair market value to the aggregate purchase price
of each class of Certificates described in clause (1) or (ii) above; (3)
dividing each of the fair market values determined in clause (1) by the sum
obtained in clause (2); (4) multiplying the quotient obtained for each
class of Certificates in clause (3) by the purchase price paid by the
Underwriter for all the Certificates; and (5) for each class of
Certificates, dividing the product obtained from such class of Certificates
in clause (4) by the original principal balance of such class of
Certificates:
Class A: ___________________
Class R: ___________________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
________________________
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT H
[Reserved]
EXHIBIT I
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) STRUCTURAL INFORMATION-factual information regarding the asset-backed
securities being offered and the structure and basic parameters of the
securities, such as the number of classes, seniority, payment priorities, terms
of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) COLLATERAL INFORMATION-factual information regarding the pool assets
underlying the asset-backed securities, including origination, acquisition and
pool selection criteria, information regarding any prefunding or revolving
period applicable to the offering, information regarding significant obligors,
data regarding the contractual and related characteristics of the underlying
pool assets (e.g., weighted average coupon, weighted average maturity,
delinquency and loss information and geographic distribution) and other factual
information concerning the parameters of the asset pool appropriate to the
nature of the underlying assets, such as the type of assets comprising the pool
and the programs under which the loans were originated;
(3) KEY PARTIES INFORMATION-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) STATIC POOL DATA-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) ISSUER COMPUTATIONAL MATERIAL-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by an underwriter or dealer, it is not issuer
information, even when derived from issuer information.)
