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EXHIBIT 1.1
5/19/96
MELLON RESIDENTIAL FUNDING CORPORATION
Mortgage Pass-Through Certificates,
Series 199_-_
UNDERWRITING AGREEMENT
_________, 199_
[Name and addresses of
Underwriters]
Ladies and Gentlemen::
Mellon Residential Funding Corporation, a Delaware corporation ("MRFC"),
proposes to cause to be issued and to sell to you, as underwriters (each, an
"Underwriter"), the Mortgage Pass-Through Certificates of the series specified
above and described in Section 2 hereof (the "Offered Certificates" and,
together with any certificates of such series retained by MRFC or the Seller,
set forth on the cover page of the Prospectus Supplement (as defined below),
collectively, the "Public Certificates") having the characteristics set forth in
the Prospectus Supplement, evidencing ownership interests in a trust consisting
of mortgage notes and the related mortgages acquired by MRFC(the "Mortgage
Loans") and related property (collectively, the "Trust"). The Mortgage Loans
will be of the type and will have the characteristics described in the
Prospectus Supplement, subject to the variances, ranges, minimums and maximums
set forth in the Prospectus Supplement, and will have the aggregate principal
balance set forth in the Prospectus Supplement, subject to an upward or downward
variance in principal balance, not to exceed the percentage set forth in the
Prospectus Supplement, the precise aggregate principal balance within such range
to be determined by MRFC in its sole discretion.
The Public Certificates, together with the other classes of certificates
of the same series (the "Private Certificates," and collectively with the Public
Certificates, the "Certificates") are to be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of the Cut-off Date
(as defined in the Prospectus Supplement), among MRFC, as Depositor, the master
servicer and seller specified in the Prospectus Supplement (the "Seller"), and
__________________________, as trustee (the "Trustee"). The Public Certificates
of each class will be issued in the minimum denominations and will have the
terms set forth in the Prospectus Supplement. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Pooling and Servicing Agreement.
SECTION 1 Representations and Warranties of the Depositor. The Depositor
represents and warrants to, and agrees with the Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-24453) has (i) been
prepared by
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the Depositor in conformity with the requirements of the Securities Act of
1933 (the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. Copies
of such Registration Statement have been delivered by the Depositor to the
Underwriters. As used in this Agreement, "Effective Time" means the date
and the time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time;
"Registration Statement" means such registration statement, at the
Effective Time, including any documents incorporated by reference therein
at such time; and "Basic Prospectus" means the final prospectus included
in the Registration Statement at the Effective Time; "Prospectus
Supplement" means the final prospectus supplement relating to the Offered
Certificates, to be filed with the Commission pursuant to paragraph (2),
(3) or (5) of Rule 424(b) of the Rules and Regulations; and "Prospectus"
means the Basic Prospectus together with the Prospectus Supplement.
Reference made herein to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Securities Act, as of the date of the Prospectus
and any reference to any amendment or supplement to the Prospectus shall
be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of the
Prospectus, and incorporated by reference in the Prospectus and any
reference to any amendment to the Registration Statement shall be deemed
to include any report of the Depositor filed with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act after the Effective Time
that is incorporated by reference in the Registration Statement. There are
no contracts or documents of the Depositor which are required to be filed
as exhibits to the Registration Statement pursuant to the Securities Act
or the Rules and Regulations which have not been so filed or incorporated
by reference therein on or prior to the Effective Date of the Registration
Statement. The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
B. The Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus
will, when they become effective or are filed with the Commission, as the
case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations. The Registration Statement, as of the
Effective Date thereof and of any amendment thereto, did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus as of its date, and as amended or
supplemented as of the Closing Date, does not and will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Depositor in
writing by the Underwriters expressly
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for use therein. The only information furnished by the Underwriters or on
behalf of the Underwriters for use in connection with the preparation of
the Registration Statement or the Prospectus is described in Section 8(I)
hereof.
C. The documents incorporated by reference to the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation is made as to documents deemed to be
incorporated by reference in the Prospectus as the result of filing a Form
8-K at the request of the Underwriters except to the extent such documents
reflect information furnished by the Depositor to the Underwriters for the
purpose of preparing such documents.
D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus
as supplemented or amended as of the Closing Date.
E. The Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
is in good standing as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of its business requires
such qualification, and has all power and authority necessary to own or
hold its properties, to conduct the business in which it is engaged and to
enter into and perform its obligations under this Agreement and the
Pooling and Servicing Agreement and to cause the Certificates to be
issued.
F. There are no actions, proceedings or investigations pending before or
threatened by any court, administrative agency or other tribunal to which
the Depositor is a party or of which any of its properties is the subject
(a) which if determined adversely to the Depositor would have a material
adverse effect on the business or financial condition of the Depositor,
(b) asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement, or the Certificates, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the
transactions contemplated by the Pooling and Servicing Agreement or this
Agreement, or (d) which might materially and adversely affect the
performance by the Depositor of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement, this Agreement or
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the Certificates.
G. This Agreement has been, and the Pooling and Servicing Agreement, when
executed and delivered as contemplated hereby and thereby will have been,
duly authorized, executed and delivered by the Depositor, and this
Agreement constitutes, and the Pooling and Servicing Agreement when
executed and delivered as contemplated herein, will constitute, legal,
valid and binding instruments enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability to
(x) applicable bankruptcy, reorganization, insolvency moratorium or other
similar laws affecting creditors' rights generally, (y) general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law), and (z) with respect to rights of indemnity under this
Agreement, limitations of public policy under applicable securities laws.
H. The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor and the consummation of
the transactions contemplated hereby and thereby, and the issuance and
delivery of the Certificates do not and will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a
party, by which the Depositor is bound or to which any of the properties
or assets of the Depositor or any of its subsidiaries is subject, nor will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Depositor or any of its properties or assets.
I. KPMG Peat Marwick LLP is an independent public accountant with respect
to the Depositor as required by the Securities Act and the Rules and
Regulations.
J. The direction by the Depositor to the Trustee to execute, authenticate,
issue and deliver the Certificates has been duly authorized by the
Depositor, and assuming the Trustee has been duly authorized to do so,
when executed, authenticated, issued and delivered by the Trustee in
accordance with the Pooling and Servicing Agreement, the Certificates will
be validly issued and outstanding and will be entitled to the benefits
provided by the Pooling and Servicing Agreement.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance of the Certificates and the
sale of the Offered Certificates to the Underwriters, or the consummation
by the Depositor of the other transactions contemplated by this Agreement
and the Pooling and Servicing Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or blue sky laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters or as have
been obtained.
L. The Depositor possesses all material licenses, certificates,
authorities or permits
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issued by the appropriate State, Federal or foreign regulatory agencies or
bodies necessary to conduct the business now conducted by it and as
described in the Prospectus, and the Depositor has not received notice of
any proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which if decided adversely to
the Depositor would, singly or in the aggregate, materially and adversely
affect the conduct of its business, operations or financial condition.
M. At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the Mortgage Loans
conveyed by the Seller, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens"); (ii) not have assigned to any person any of its
right or title in the Mortgage Loans, in the Pooling and Servicing
Agreement or in the Certificates being issued pursuant thereto; and (iii)
have the power and authority to sell its interest in the Mortgage Loans to
the Trustee and to sell the Offered Certificates to the Underwriters. Upon
execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee will have acquired beneficial ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans. Upon
delivery to the Underwriters of the Offered Certificates, the Underwriters
will have good title to the Offered Certificates, free of any Liens.
N. As of the Cut-Off Date, each of the Mortgage Loans will meet the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Prospectus.
O. Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of such
term under the Investment Company Act of 1940 (the "1940 Act") and the
rules and regulations of the Commission thereunder.
P. At the Closing Date, the Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
Q. At the Closing Date, the Offered Certificates shall have been rated in
the categories and by the nationally recognized rating agencies as set
forth in the Prospectus Supplement.
R. Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates have been paid or will be paid at
or prior to the Closing Date.
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S. At the Closing Date, each of the representations and warranties of the
Depositor set forth in the Pooling and Servicing Agreement will be true
and correct in all material respects.
Any certificate signed by an officer of the Depositor and delivered to an
Underwriter or counsel for the Underwriters in connection with an offering of
the Offered Certificates shall be deemed a representation and warranty as to the
matters covered thereby to each person to whom the representations and
warranties in this Section 1 are made.
SECTION 2 Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the Trustee to issue the Offered Certificates and
agrees to sell to each Underwriter, and each Underwriter agrees (except as
provided in Sections 10 and 11 hereof) severally and not jointly to purchase
from the Depositor the aggregate initial principal amounts or percentage
interests of the respective Class or Classes of Offered Certificates set forth
opposite their names on Schedule A, at the purchase price or prices set forth in
Schedule A. The Underwriters may offer the Offered Certificates to certain
dealers at such prices less a concession not in excess of the respective amounts
set forth in Schedule A. The Underwriters may allow and such dealers may reallow
a discount to certain dealers not in excess of the respective amounts set forth
in Schedule A.
SECTION 3 Delivery and Payment. Delivery of and payment for the Offered
Certificates to be purchased by the Underwriters shall be made at the offices of
Stroock & Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as shall be agreed upon by the Underwriters and the Depositor
at 10:00 A.M. New York City time on ______, 199_, or at such other time or date
as shall be agreed upon in writing by the Underwriters and the Depositor (such
date being referred to as the "Closing Date"). Payment shall be made to the
Depositor by wire transfer of same day funds payable to the account of the
Depositor. Delivery of the Offered Certificates shall be made to the
Underwriters for the accounts of the applicable Underwriters against payment of
the purchase price thereof. The Certificates shall be in such authorized
denominations and registered in such names as the Underwriters may request in
writing at least two business days prior to the Closing Date. The Offered
Certificates will be made available for examination by the Underwriters no later
than 2:00 P.M. New York City time on the first business day prior to the Closing
Date.
SECTION 4 Offering by the Underwriters. It is understood that, subject to
the terms and conditions hereof, the Underwriters propose to offer the Offered
Certificates for sale to the public as set forth in the Prospectus.
SECTION 5 Covenants of the Depositor. The Depositor agrees as follows:
A. To prepare the Prospectus in a form approved by the Underwriters and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the time required thereby; to make no further amendment or any
supplement to the Registration
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Statement or to the Prospectus prior to the Closing Date except as
permitted herein; to advise the Underwriters, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective prior to the Closing Date or
any supplement to the Prospectus or any amended Prospectus has been filed
prior to the Closing Date and to furnish the Underwriters with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Depositor with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and, for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Offered Certificates; to promptly advise the Underwriters of
its receipt of notice of the issuance by the Commission of any stop order
or of: (i) any order preventing or suspending the use of the Prospectus;
(ii) the suspension of the qualification of the Offered Certificates for
offering or sale in any jurisdiction; (iii) the initiation of or threat of
any proceeding for any such purpose; (iv) any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information. In the event of the issuance of
any stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, the Depositor promptly
shall use its best efforts to obtain the withdrawal of such order by the
Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including exhibits);
(ii) the Prospectus and any amended or supplemented Prospectus; and (iii)
any document incorporated by reference in the Prospectus (including
exhibits thereto). If the delivery of a prospectus is required at any time
prior to the expiration of nine months after the Effective Time in
connection with the offering or sale of the Offered Certificates, and if
at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, the Depositor
shall notify the Underwriters and, upon the Underwriters' request, shall
file such document and prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which corrects such statement
or omission or effects such compliance, and
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in case the Underwriters are required to deliver a Prospectus in
connection with sales of any of the Offered Certificates at any time nine
months or more after the Effective Time, upon the request of the
Underwriters but at their expense, the Depositor shall prepare and deliver
to the Underwriters as many copies as the Underwriters may reasonably
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
D. To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may,
in the judgment of the Depositor or the Underwriters, be required by the
Securities Act or requested by the Commission.
E. The Depositor will cause any Investor Materials (as defined below) with
respect to the Offered Certificates which are delivered by any Underwriter
to the Depositor and accompanied by a letter, reasonably acceptable to the
Underwriters and the Depositor, of KPMG Peat Marwick LLP with respect to
such Investor Materials to be filed with the Commission on a Current
Report on Form 8-K (the "Form 8-K -- Investor Materials") at or before the
time required by the No Action Letters (defined below); provided, however,
that the Depositor shall have no obligation to file any materials which,
in the reasonable determination of the Depositor after consultation with
such Underwriter, (i) are not required to be filed pursuant to the No
Action Letters or (ii) contain any erroneous information or untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Depositor shall have no
obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Investor Materials provided by any Underwriter to the
Depositor as aforesaid. For purposes hereof, as to each Underwriter, the
term "Investor Materials" shall mean those Computational Materials, ABS
Term Sheets and Collateral Term Sheets delivered by an Underwriter to the
Depositor within the meaning of the no-action letter dated May 20, 1994
issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I and
certain affiliates, the no-action letter dated May 27, 1994 issued by the
Commission to the Public Securities Association and the no action letter
dated February 17, 1995 issued by the Commission to the Public Securities
Association (collectively, the "No Action Letters") for which the filing
of such material is a condition of the relief granted in such letters.
F. To furnish the Underwriters and counsel for the Underwriters, prior to
filing with the Commission, and to obtain the consent of the Underwriters
for the filing of the following documents relating to the Certificates:
(i) amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or
(ii) Prospectus pursuant to Rule 424 of the Rules and Regulations.
G. To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States or elsewhere as the Underwriters may designate, and maintain
or cause to be maintained such qualifications in effect for as
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long as may be required for the distribution of the Offered Certificates.
The Depositor will file or cause the filing of such statements and reports
as may be required by the laws of each jurisdiction in which the Offered
Certificates have been so qualified.
H. Unless the Underwriters shall otherwise have given their written
consent, no pass-through certificates backed by mortgage loans or other
similar securities representing interest in or secured by other
mortgage-related assets originated or owned by the Depositor or the Seller
shall be publicly offered, sold nor shall the Depositor or the Seller
enter into any contractual arrangements that contemplate the public
offering or sale of such securities for a period of seven (7) business
days following the commencement of the offering of the Offered
Certificates to the public.
I. So long as the Offered Certificates shall be outstanding the Depositor
shall cause the Trustee, pursuant to the Pooling and Servicing Agreement,
to deliver to the Underwriters as soon as such statements are furnished to
the Holders (i) the annual statement as to compliance delivered to the
Trustee pursuant to Section ___of the Pooling and Servicing Agreement;
(ii) the annual statement of a firm of independent public accountants
furnished to the Trustee pursuant to Section ___ of the Pooling and
Servicing Agreement; (iii) the monthly servicing report furnished to the
Trustee pursuant to Section ___ of the Pooling and Servicing Agreement;
and (iv) the monthly reports furnished to the Certificateholders pursuant
to Section ___ of the Pooling and Servicing Agreement.
SECTION 6 Conditions to the Underwriters' Obligations. The obligations of
the Underwriters to purchase the Offered Certificates pursuant to this Agreement
are subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor and the Seller
herein contained; (ii) the performance by the Depositor of all of its
obligations hereunder; and (iii) the following conditions as of the Closing
Date:
A. The Underwriters shall have received confirmation of the effectiveness
of the Registration Statement. No stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission. Any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
shall have been complied with.
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B. The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement
or the Prospectus or any amendment or supplement thereto contains an
untrue statement of a fact or omits to state a fact which, in the opinion
of______________________, counsel for the Underwriters, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and
Servicing Agreement, the Certificates, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to
the Underwriters and their counsel, and the Depositor shall have furnished
to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
D. ________________, special counsel to the Depositor, shall have
furnished to the Underwriters their written opinion, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
1. The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus.
2. The Registration Statement and any amendments thereto have become
effective under the 1933 Act; to the best of such counsel's
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 and
not terminated; and the Registration Statement, the Prospectus and
each amendment or supplement thereto, as of their respective
effective or issue dates (other than the financial and statistical
information contained or incorporated therein, as to which such
counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Securities
Act and the Rules and Regulations thereunder.
3. To the best of such counsel's knowledge, there are no material
contracts, indentures or other documents of a character required to
be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
4. The statements set forth in the Prospectus and the Prospectus
Supplement under the captions "ERISA Considerations" and "Federal
Income Tax Considerations" to the extent that they constitute
matters of federal law or legal conclusions with respect thereto,
provide a fair and accurate summary of
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such law or conclusions.
5. The Pooling and Servicing Agreement conforms in all material
respects to the description thereof contained in the Prospectus and
is not required to be qualified under the Trust Indenture Act of
1939, as amended.
6. Neither the Depositor nor the Trust is an "investment company" or
under the "control" of an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended.
7. Assuming that (a) the Trustee causes the Trust, as the Trustee
has covenanted to do in the Pooling and Servicing Agreement, to be
treated as a "real estate mortgage investment conduit" (the
"REMIC"), as such term is defined in the Internal Revenue Code of
1986, as amended (the "Code") and (b) the parties to the Pooling and
Servicing Agreement comply with the terms thereof, the Offered
Certificates will be treated as "regular interests" in the REMIC and
the Class R Certificates will constitute the sole class of "residual
interest" in the REMIC.
8.. The Certificates will, when issued, conform to the description
thereof contained in the Prospectus.
9. The Offered Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and delivered to the Underwriters and paid for
in accordance with the Underwriting Agreement, will be entitled to
the benefits of the Pooling and Servicing Agreement.
Such counsel shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the Closing Date, in
form and substance satisfactory to the Underwriters to the effect that no
facts have come to the attention of such counsel which lead them to
believe that: (a) the Registration Statement, at the time such
Registration Statement became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (except
as to financial or statistical data contained or incorporated in the
Registration Statement);or (b) the Prospectus, as of its date and as of
the Closing Date, contained or contains an 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 (except as to financial or statistical data
contained or incorporated in the Prospectus).
E. The Underwriters shall have received the favorable opinion, dated the
Closing Date, of ___________special counsel to the Depositor, addressed to
the Depositor and satisfactory to _________, ________ and the
Underwriters, with respect to certain matters relating to the transfer of
the Mortgage Loans to the Depositor and from the
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Depositor to the Trust, and such counsel shall have consented to the
reliance on such opinion by ________, _________ and the Underwriters as
though such opinion had been addressed to each such party.
F. ________________, special counsel to ________________("the Company"),
in its capacity as both Seller and Servicer under the Pooling and
Servicing Agreement, shall have furnished to the Underwriters their
written opinion, addressed to the Underwriters and the Depositor and dated
the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
1. The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
__________and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of its business so requires. The Company has all power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged and to enter into and perform its
obligations under the Pooling and Servicing Agreement.
2. The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a
party or by which it or its properties may be bound, which default
might result in any material adverse change in the financial
condition, earnings, affairs or business of the Company or which
might materially and adversely affect the ability of the Company to
perform its obligations under the Pooling and Servicing Agreement.
3. This Agreement and the Pooling and Servicing Agreement have been
duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery of such agreements by
the other parties thereto, such agreements constitute the valid and
binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law) and (z) with respect to rights of indemnity under
this Agreement, limitations of public policy under applicable
securities laws.
4. The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Company and the consummation
of the transactions contemplated hereby and thereby, do not and will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan
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agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the
Company, nor will such actions result in a violation of the
provisions of the certificate of incorporation or by-laws of the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company
or any of its properties or assets, which breach or violation would
have a material adverse effect on the business, operations or
financial condition of the Company.
5. There are not, to the best of such counsel's knowledge, any
actions, proceedings or investigations pending before or, threatened
by any court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Company would have a
material adverse effect on the business, results of operations or
financial condition of the Company (b) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement or the
Certificates; (c) seeking to prevent the issuance of the
Certificates or the consummation by the Company of any of the
transactions contemplated by this Agreement or the Pooling and
Servicing Agreement; or (d) which might materially and adversely
affect the performance by the Company of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement, or the Certificates.
G. ____________, special counsel to the Depositor, shall have furnished to
the Underwriters their written opinion, addressed to the Underwriters and
dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
1. The Depositor has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of
Delaware and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or lease of property or the
conduct of its business so requires. The Depositor has all power and
authority necessary to own or hold its properties and to conduct the
business in which it is engaged and to enter into and perform its
obligations under this Agreement and the Pooling and Servicing
Agreement, and to cause the Certificates to be issued.
2. The Depositor is not in violation of its certificate of
incorporation or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is
a party or by which it or its properties may be bound, which default
might result in any material adverse changes in the financial
condition,
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earnings, affairs or business of the Depositor or which might
materially and adversely affect the properties or assets, taken as a
whole, of the Depositor.
3. This Agreement the Pooling and Servicing Agreement have been duly
authorized, executed and delivered by the Depositor and, assuming
the due authorization, execution and delivery of such agreements by
the other parties thereto, such agreements constitute valid and
binding obligations of the Depositor, enforceable against the
Depositor in accordance with their respective terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in
equity or at law) and (z) with respect to rights of indemnity under
this Agreement, limitations of public policy under applicable
securities laws.
4. The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor, the consummation
of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates do not and will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the
Depositor is bound or to which any of the property or assets of the
Depositor or any of its subsidiaries is subject, which breach or
violation would have a material adverse effect on the business,
operations or financial condition of the Depositor, nor will such
actions result in a violation of the provisions of the certificate
of incorporation or by-laws of the Depositor or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties
or assets, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the
Depositor.
5. The direction by the Depositor to the Trustee to execute, issue,
authenticate and deliver the Certificates has been duly authorized
by the Depositor and, assuming that the Trustee has been duly
authorized to do so, when executed, authenticated and delivered by
the Trustee in accordance with the Pooling and Servicing Agreement,
the Certificates will be validly issued and outstanding and will be
entitled to the benefits of the Pooling and Servicing Agreement.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Certificates,
and the sale of the Offered Certificates to the Underwriters, or the
consummation by the Depositor of the other transactions contemplated
by this Agreement and the Pooling and Servicing Agreement, except
such consents, approvals, authorizations,
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registrations or qualifications as may be required State securities
or Blue Sky laws in connection with the purchase and distribution of
the Offered Certificates by the Underwriters or as have been
previously obtained.
7. There are not, to the best of such counsel's knowledge, any
actions, proceedings or investigations pending with respect to which
the Depositor has received service of process before or, threatened
by any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the
subject: (a) which if determined adversely to the Depositor would
have a material adverse effect on the business, results of
operations or financial condition of the Depositor; (b) asserting
the invalidity of the Pooling and Servicing Agreement, this
Agreement or the Certificates; (c) seeking to prevent the issuance
of the Certificates or the consummation by the Depositor of any of
the transactions contemplated by the Pooling and Servicing Agreement
or this Agreement;, or (d) which might materially and adversely
affect the performance by the Depositor of its obligations under, or
the validity or enforceability of, the Pooling and Servicing
Agreement, this Agreement or the Certificates.
H. The Underwriters shall have received the favorable opinion or opinions,
dated the date of the Closing Date, of counsel for the Underwriters, with
respect to the issue and sale of the Offered Certificates, the
Registration Statement, this Agreement, the Prospectus and such other
related matters as the Underwriters may reasonably require.
I. The Depositor and the Company shall each have furnished to the
Underwriters a certificate, dated the Closing Date and signed by the
Chairman of the Board, the President or a Vice President of the Depositor
and the Company, respectively, stating as it relates to each such entity:
1. The representations and warranties made by such entity in this
Agreement and in the Pooling and Servicing Agreement are true and
correct as of the Closing Date; and such entity has complied with
all agreements contained herein which are to have been complied with
on or prior to the Closing Date.
2. The information contained in the Prospectus relating to such
entity and the Mortgage Loans is true and accurate in all material
respects and nothing has come to his or her attention that would
lead such officer to believe that the Registration Statement or the
Prospectus includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein
not misleading.
In addition to the foregoing, the Company Certificate shall state that the
representations and warranties set forth in Sections 1 D, E, F, G, H, L, M
and N are made by the Company instead of the Depositor and are true as to
the Company as though such representations and warranties were fully set
forth in such certificate.
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J. The Trustee shall have furnished to the Underwriters a certificate of
the Trustee, signed by one or more duly authorized officers of the
Trustee, dated the Closing Date, to the effect that:
1. The Trustee is a national association duly incorporated and
validly existing under the laws of the United States.
2. The Trustee has the full corporate trust power to execute,
deliver and perform its obligations under the Pooling and Servicing
Agreement.
3. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its
obligations under the Pooling and Servicing Agreement have been duly
authorized by all necessary corporate action of the Trustee.
4. The Pooling and Servicing Agreement is a valid and legally
binding obligation of the Trustee enforceable against the Trustee.
5. The Certificates have been duly authenticated, executed and
delivered by the Trustee.
6. If the Trustee were acting as Servicer under the Pooling and
Servicing Agreement as of the date of such opinion, the Trustee
would have the full corporate trust power to perform the obligations
of the Servicer under the Pooling and Servicing Agreement.
K. The Offered Certificates shall have been rated in the categories and by
the rating agencies set forth in the Prospectus Supplement.
L. Prior to the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained,
and all proceedings taken by the Depositor in connection with the issuance
and sale of the Certificates as herein contemplated shall be satisfactory
in form and substance to the Underwriters and counsel for the
Underwriters.
M. Subsequent to the execution and delivery of this Agreement none of the
following shall have occurred: (i) trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the
over-the-counter market shall have been suspended or minimum prices shall
have been established on either of such exchanges or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the United
States shall have become
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engaged in hostilities, there shall have been an escalation of hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States; or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets of the United States shall be such) as to make it in
each of the instances set forth in clauses (i), (ii), (iii) and (iv)
herein, in the reasonable judgment of the Underwriters, impractical or
inadvisable to proceed with the public offering or delivery of the
Certificates on the terms and in the manner contemplated in the
Prospectus.
N. The Underwriters shall have received from KPMG Peat Marwick LLP,
certified public accountants, a letter dated the date of the Prospectus
Supplement and a letter dated the date hereof and satisfactory in form and
substance to the Underwriters and their counsel, to the effect that they
have performed certain specified procedures, all of which have been agreed
to by the Underwriters, as a result of which they determined that certain
information of an accounting, financial or statistical nature set forth in
the Prospectus Supplement agrees with the records of the Depositor or MMC,
excluding any questions of legal interpretation.
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Depositor at any time at or prior to the closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to the Underwriters and their counsel.
SECTION 7 Payment of Expenses. The Depositor agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the Certificates
and any taxes payable in connection therewith; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (c) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of reproducing and distributing this Agreement; (e) the fees and expenses
of qualifying the Certificates under the securities laws of the several
jurisdictions designated by the Underwriters as provided in Section 5(H) hereof
and of preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriters); (f) any fees charged by securities rating services for rating the
Offered Certificates; (g) the costs of the accountant's letters referred to in
Section 6(N) hereof; and (h) all other costs and expenses incident to the
performance of the obligations of the Depositor (including costs and expenses of
its counsel); provided that, except as provided in this Section 7, the
Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any
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transfer taxes on the Offered Certificates which they may sell and the expenses
of advertising any offering of the Offered Certificates made by the
Underwriters, and the Underwriters shall
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pay the cost of any accountant's letters relating to any Investor Materials (as
defined in Section 5(E) hereof).
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section 6 or Section 11, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of ________________, counsel for the
Underwriters.
SECTION 8 Indemnification and Contribution. A. The Depositor agrees to
indemnify and hold harmless the Underwriters and each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
from and against any and all loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Offered Certificates), to which such Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse
such Underwriter and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus, or any
amendment thereof or supplement thereto, or the Registration Statement, or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Depositor by or on behalf of such
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Depositor may otherwise have
to any Underwriter or any controlling person of any of such Underwriter. The
only information furnished by the Underwriters or on behalf of the Underwriters
for use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
B. Each Underwriter severally, and not jointly, agrees to indemnify and hold
harmless the Depositor, each of its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all loss,
claim, damage or liability, or any action in respect thereof, to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a
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material fact contained in the Registration Statement, or any amendment thereof
or supplement thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus, or any amendment thereof or
supplement thereto, or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Depositor by or
on behalf of such Underwriter specifically for inclusion therein, and shall
reimburse the Depositor and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Depositor or any
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Depositor or any such director, officer or controlling person. The only
information furnished by the Underwriters or on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement or the
Prospectus is described in Section 8(I) hereof.
C. Promptly after receipt by any indemnified party under this Section 8 of
notice of any claim or the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify any
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except to the extent provided in the
next following paragraph, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the
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reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel; or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to local counsel) at any time for all
such indemnified parties, which firm shall be designated in writing by the
related Underwriter, if the indemnified parties under this Section 8 consist of
one or more Underwriters or any of its or their controlling persons, or the
Depositor, if the indemnified parties under this Section 8 consist of the
Depositor or any of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D. Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to the day on which the Prospectus Supplement is required to
be filed pursuant to Rule 424 with a copy of any Investor Materials (as defined
in Section 5(E) hereof) produced by such Underwriter for filing with the
Commission on Form 8-K.
E. Each Underwriter severally agrees, assuming all Seller Provided
Information is accurate and complete in all material respects, to indemnify and
hold harmless the Depositor, each of the Depositor's directors, each of its
officers who signed the Registration Statement, and each person who controls the
Depositor within the meaning of Section 15 of the Securities Act against any and
all losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of a material fact contained in the Investor
Materials provided by such Underwriter and agrees
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to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by him, her or it in connection with investigating or
defending or preparing to defend any such loss, claim, damage, liability or
action as such expenses are incurred. The obligations of an Underwriter under
this Section 8(E) shall be in addition to any liability which such Underwriter
may otherwise have.
The procedures set forth in Section 8(C) shall be equally applicable to
this Section 8(E).
F. If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(A), (B) or (E) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the related Underwriters on the
other from the offering of the related Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section 8(C), in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and the related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of the Depositor and an Underwriter shall be deemed
to be in such proportion as the total net proceeds from the offering (before
deducting expenses) received by the Depositor bear to the total underwriting
discounts and commissions received by the related Underwriter in connection with
the Offered Certificates purchased by it.
The relative fault of the Depositor and an Underwriter shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by such Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(F) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purposes) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(F)
shall be deemed to include, for purposes of this Section 8(F), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
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For purposes of this Section 8, in no case shall any Underwriter be
responsible for any amount in excess of the underwriting discounts and
commissions received by such Underwriter in connection with the Offered
Certificates purchased by it. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
G. For purposes of this Section 8, as to each Underwriter the term
"Investor Materials" means such portion, if any, of the information delivered to
the Depositor by such Underwriter pursuant to Section 8(D) for filing with the
Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference through a Form 8-K --
Investor Materials; and
(ii) does not constitute Seller-Provided Information.
"Seller-Provided Information" means any computer tape (or other
information) furnished to any Underwriter by or on behalf of the Seller and
Service concerning the assets comprising the Trust.
H. The Company agrees to indemnify each indemnified party referred to in
Section 8(A) hereof with respect to Seller Provided Information to the same
extent as the indemnity granted under such section. The procedures set forth in
Section 8(C) shall be equally applicable to this Section 8(H).
I. Each Underwriter confirms that the information regarding such
Underwriter set forth in the last paragraph on the cover page of the Prospectus
Supplement, the information regarding such Underwriter set forth under the
caption "Underwriting" in the Prospectus Supplement and such Underwriter's
Investor Materials, if any (other than to the extent such information is based
on Seller Provided Information) furnished by such Underwriter is correct, and
the parties hereto acknowledge that such information constitutes the only
information furnished in writing by or on behalf of any Underwriter for use in
connection with the preparation of the Registration Statement or the Prospectus.
SECTION 9 Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or controlling persons
thereof, or by or on behalf of the Depositor and shall survive delivery of any
Offered Certificates to the Underwriters.
SECTION 10 Default by One or More of the Underwriters. If one or more of
the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting
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Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Certificates does not
exceed 10% of the aggregate principal amount of the Offered Certificates
to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such
non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates exceeds
10% of the aggregate principal amount of the Offered Certificates to be
purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this Section
10, each of the Underwriters and the Depositor shall have the right to postpone
the Closing Date for a period not exceeding five Business Days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 11 Termination of Agreement. The Underwriters may terminate this
Agreement immediately upon notice to the Depositor, at any time at or prior to
the Closing Date if any of the events or conditions described in Section 6(P) of
this Agreement shall occur and be continuing. In the event of any such
termination, the covenant set forth in Section 5(G), the provisions of Section
7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 15 shall remain in effect.
SECTION 12 Obligations of the Company. The Company agrees with the
Underwriters, for the sole and exclusive benefit of each such Underwriter and
each person controlling such Underwriter within the meaning of the Securities
Act and not for the benefit of any assignee thereof or any other person or
persons dealing with such Underwriter, in consideration of and as an inducement
to their agreement to purchase the Offered Certificates from the Depositor, to
indemnify and hold harmless each Underwriter against any failure by the
Depositor to perform its obligations to the Underwriters hereunder, including,
without limitation, any failure by the Depositor to honor any obligation to any
Underwriter pursuant to Section 8 hereof.
SECTION 13 Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
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A. if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to ______________________________; and
B. if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to _________________________________.
SECTION 14 Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
the Securities Act, and for the benefit of directors of the Depositor, officers
of the Depositor who have signed the Registration Statement and any person
controlling the Depositor within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 14, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
SECTION 15 Survival. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to the
shall survive the delivery of and payment for the Certificates and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION 16 Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 17 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflict of law rules thereof.
SECTION 18 Counterparts. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
SECTION 19 Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement between the Depositor
and the Underwriters, please indicate your acceptance in the space provided for
the purpose below.
Very truly yours,
MELLON RESIDENTIAL FUNDING
CORPORATION
By: _____________________
Name:
Title:
___________________________
By: _____________________
Name:
Title:
CONFIRMED AND ACCEPTED, as
of the date first above written:
[Underwriters]
By:____________________________________
Name:
Title:
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SCHEDULE A
Underwriters Principal Purchase Price
------------ --------- --------------
Total
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SCHEDULE A (cont'd)
Selling Reallowance
Class Concession Discount
----- ---------- --------
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