EXHIBIT 1.1
CENDANT MORTGAGE CAPITAL LLC
$____________ (Approximately)
Mortgage Pass-Through Certificates, Series ____-_
Class A $____________ _____%
Class R $____________ _____%
UNDERWRITING AGREEMENT
________________, ____
[Underwriter]
______________________________
______________________________
Ladies and Gentlemen:
Cendant Mortgage Capital LLC, a Delaware limited liability company (the
"Company"), proposes to sell to you (also referred to herein as the
"Underwriter") Mortgage Pass-Through Certificates, Series ____-__, Class A 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 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
__________________, ____ (the "Cut-off Date") among the Company, as seller,
[Name of Master Servicer], as master servicer (the "Master Servicer"), and [Name
of Trustee], as trustee (the "Trustee"). The Certificates are described more
fully in the Basic Prospectus and the Prospectus Supplement (each as hereinafter
defined) which the Company has furnished to you.
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1. Representations, Warranties and Covenants.
1.1 The Company represents and warrants to, and agrees with
you 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 and
Mortgage-Backed Notes (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 you.
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 supplement dated __________, ____ (the
"Prospectus Supplement"), to the prospectus dated __________, ____ (the
"Basic 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 Basic 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 the Closing Date for use in connection with
the offering of the Certificates, are hereinafter called the
"Prospectus". Any preliminary form of the Prospectus Supplement which
has heretofore been filed pursuant to Rule 424, or prior to the
effective date of the Registration Statement pursuant to Rule 402(a),
or 424(a) is hereinafter called a "Preliminary Prospectus Supplement."
(b) The Registration Statement has become effective,
and the Registration Statement as of the effective date (the "Effective
Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable
requirements of the Act and the 1933 Act Regulations; and 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 the information contained in or
omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto relating to the information
identified by underlining or other highlighting as shown in Exhibit E
(the "Excluded Information"); and provided, further, that the Company
makes no representations or warranties as to either (i) any information
in any Computational Materials or ABS Term Sheets (each as hereinafter
defined) required to be provided by the Underwriter to the Company
pursuant to Section 4.2, except to the extent of any information set
forth therein that constitutes Pool Information (as defined below), or
(ii) as to any information contained in or omitted from the portions of
the Prospectus identified by underlining or other highlighting as shown
in Exhibit F (the
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"Underwriter Information"). As used herein, "Pool Information" means
information with respect to the characteristics of the Mortgage Loans
and administrative and servicing fees, as provided by or on behalf of
the Company to the Underwriter in final form and set forth in the
Prospectus Supplement. The Company acknowledges that, except for any
Computational Materials, the Underwriter Information constitutes the
only information furnished in writing by you or on your behalf for use
in connection with the preparation of the Registration Statement, any
preliminary prospectus or the Prospectus, and you confirm that the
Underwriter Information is correct.
(c) The Company has been duly formed and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware and has the requisite organizational power to own its
properties and to conduct its business as presently conducted by it.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) 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.
1.2 The 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
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5.02(g)(i)(B)(I) 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(g)(i)(B)(II)
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 $______ or __%, 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 $_______, 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 will not be less than an initial Certificate Principal
Balance of $______.
(g) The Underwriter will use its best reasonable
efforts to cause Xxxxx & Co. to issue a commitment letter, prior to the
Closing Date, to DTC stating that Xxxxx & Co. will value the DTC
Registered Certificates (hereinafter defined) on an ongoing basis
subsequent to the Closing Date.
(h) The Underwriter will have 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. Such funds will be available for
immediate transfer into the account of the Company maintained at such
bank.
(i) As of the date hereof and as of the Closing Date,
the Underwriter has complied with all of its obligations hereunder
including Section 4.2, and, with respect to all Computational Materials
and ABS Term Sheets provided by the Underwriter to the Company pursuant
to Section 4.2, if any, such Computational Materials and ABS Term
Sheets are accurate in all material respects when read in conjunction
with the Prospectus Supplement (taking into account the assumptions
explicitly set forth in the Computational Materials, except to the
extent of any errors therein that are caused by errors in the Pool
Information). The Computational Materials and ABS Term Sheets provided
by the Underwriter to the Company constitute a complete set of all
Computational Materials and ABS Term Sheets that are required to be
filed with the Commission.
1.3 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,
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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 you, and you agree to purchase from the Company, the
Certificates (other than for a de minimis portion of the Class R Certificates,
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 _______________________ at ___________________
time, on ______________, ____ or such later date as you shall designate, which
date and time may be postponed by agreement between you 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 you 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 ___________ on the business day prior to
the Closing Date.
4. Offering by Underwriter.
4.1 It is understood that you propose to offer the
Certificates for sale to the public as set forth in the Prospectus and you agree
that all such offers and sales by you shall be made in compliance with all
applicable laws and regulations.
4.2 It is understood that you may prepare and provide to
prospective investors certain Computational Materials (as defined below) in
connection with your offering of the Certificates, subject to the following
conditions:
(a) The Underwriter shall comply with all applicable
laws and regulations in connection with the use of Computational
Materials, including the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx
& Co. Incorporated and Xxxxxx Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May
24, 1994 (collectively, the "Xxxxxx/PSA Letter") as well as the PSA
Letter referred to below. The Underwriter shall comply with all
applicable laws and regulations in connection with the use of ABS Term
Sheets, including
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the No-Action Letter of February 17, 1995 issued by the Commission to
the Public Securities Association (the "PSA Letter" and, together with
the Xxxxxx/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as
used herein shall have the meaning given such term in the No-Action
Letters, but shall include only those Computational Materials that have
been prepared or delivered to prospective investors by or at the
direction of the Underwriter. For purposes hereof, "ABS Term Sheets"
and "Collateral Term Sheets" as used herein shall have the meanings
given such terms in the PSA Letter but shall include only those ABS
Term Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of the
Underwriter.
(c) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be filed
pursuant to the No-Action Letters shall bear a legend on each page
including the following statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [Name of
Underwriter]. NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY
OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY
OR COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION
HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED BY THE
APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
In the case of Collateral Term Sheets, such legend shall also include
the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [Except with
respect to the initial Collateral Term Sheet prepared by the
Underwriter] SUPERSEDES ALL INFORMATION CONTAINED IN ANY
COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL
PREVIOUSLY PROVIDED BY [Name of Underwriter]."
The Company shall have the right to require additional specific legends
or notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of terminology
and the right to determine the types of information appearing therein.
Notwithstanding the foregoing, this subsection (c) will be satisfied if
all such Computational Materials and ABS Term Sheets bear a legend in
the form set forth in Exhibit I hereto.
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(d) The Underwriter shall provide the Company with
representative forms of all Computational Materials and ABS Term Sheets
prior to their first use, to the extent such forms have not previously
been approved by the Company for use by the Underwriter. The
Underwriter shall provide to the Company, for filing on Form 8-K as
provided in Section 5.9, copies (in such format as required by the
Company) of all Computational Materials that are required to be filed
with the Commission pursuant to the No-Action Letters. The Underwriter
may provide copies of the foregoing in a consolidated or aggregated
form including all information required to be filed. All Computational
Materials and ABS Term Sheets described in this subsection (d) must be
provided to the Company not later than 10:00 a.m. New York time one
business day before filing thereof is required pursuant to the terms of
this Agreement. The Underwriter agrees that it will not provide to any
investor or prospective investor in the Certificates any Computational
Materials or ABS Term Sheets on or after the day on which Computational
Materials and ABS Term Sheets are required to be provided to the
Company pursuant to this Section 4.2(d) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to the
Company in accordance with this Section 4.2(d) for filing pursuant to
Section 5.9), unless such Computational Materials or ABS Term Sheets
are preceded or accompanied by the delivery of a Prospectus to such
investor or prospective investor.
(e) All information included in the Computational
Materials shall be generated based on substantially the same
methodology and assumptions that are used to generate the information
in the Prospectus Supplement as set forth therein; provided that the
Computational Materials and ABS Term Sheets or ABS Term Sheets, as the
case may be, may include information based on alternative assumptions
if specified therein. If any Computational Materials or ABS Term Sheets
that are required to be filed were based on assumptions with respect to
the Pool that differ from the final Pool Information in any material
respect or on Certificate structuring terms that were revised prior to
the printing of the Prospectus, the Underwriter shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be, based
on the final Pool Information and structuring assumptions, circulate
such revised Computational Materials and ABS Term Sheets to all
recipients of the preliminary versions thereof that indicated orally to
the Underwriter they would purchase all or any portion of the
Certificates and include such revised Computational Materials and ABS
Term Sheets (marked, "as revised") in the materials delivered to the
Company pursuant to subsection (d) above.
(f) The Company shall not be obligated to file any
Computational Materials that have been determined to contain any
material error or omission. In the event that any Computational
Materials or ABS Terms Sheets are determined, within the period which
the Prospectus relating to the Certificates is required to be delivered
under the Act, to contain a material error or omission, the Underwriter
shall prepare a corrected version of such Computational Materials or
ABS Term Sheets, shall circulate such corrected Computational Materials
to all recipients of the prior versions thereof that indicated orally
to the Underwriter they would purchase all or any portion of the
Certificates and shall deliver copies of such corrected Computational
Materials and ABS Term Sheets (marked, "as corrected") to the Company
for filing with the Commission in a subsequent Form 8-K
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submission (subject to the Company's obtaining an accountant's comfort
letter in respect of such corrected Computational Materials, which
shall be at the expense of the Underwriter), provided that if any such
letter is required to be revised solely because of a change in the Pool
Information, fifty percent of any additional expenses for such letter
resulting from the change in Pool Information shall be paid by each of
the Underwriter and the Company.
(g) If the Underwriter does not provide any
Computational Materials or ABS Term Sheets to the Company pursuant to
subsection (d) above, the Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide any
prospective investors with any information in written or electronic
form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the
No-Action Letters, and the Underwriter shall provide the Company with a
certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by the
Underwriter to the Company of all Computational Materials and ABS Term
Sheets required to be delivered in accordance with subsection (d)
above, or in the delivery of the accountant's comfort letter in respect
thereof pursuant to Section 5.9, 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 5.9 to file the Computational Materials
and ABS Term Sheets by the time specified therein.
(i) The 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 No-Action Letters with
respect to the generation and use of Computational Materials and ABS
Term Sheets in connection with the offering of the Certificates.
4.3 You further agree that on or prior to the sixth day after
the Closing Date, you 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, (a) if less than 10% of the aggregate
principal balance 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 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 sold, or (c)
the first single price at which at least 10% of the aggregate principal balance
of such class of Certificates was sold to the public, (ii) the prepayment
assumption used in pricing each class of 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 each class
of Certificates to the extent such information can in the good faith judgment of
the Underwriter be determined by it.
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5. Agreements. The Company agrees with you that:
5.1 Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Certificates, the Company will
furnish you with a copy of each such proposed amendment or supplement.
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.
5.3 If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the Certificates
is required to be delivered under the 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 you, 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 law.
5.4 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.
5.5 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to you the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.18 of
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section 3.19
of the Pooling and Servicing Agreement, as soon as such statements are furnished
to the Company.
5.6 The Company will endeavor to arrange for the qualification
of the Certificates for sale under the laws of such jurisdictions as you 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.
5.7 If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses incident to
the performance of the obligations of the Company under this Agreement, and will
reimburse you for any reasonable expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by you in connection with
qualification of the Certificates for sale and determination of their
eligibility for investment under
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the laws of such jurisdictions as you have reasonably requested pursuant to
Section 5.6 above and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Certificates, and
for expenses incurred in distributing the Prospectus (including any amendments
and supplements thereto) to the Underwriter. Except as herein provided, you
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.
5.8 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 you of the issuance of such
stop order.
5.9 The Company shall file the Computational Materials and ABS
Term Sheets (if any) provided to it by the Underwriter under Section 4.2(d) with
the Commission pursuant to a Current Report on Form 8-K by 10:00 a.m. on the
morning the Prospectus is delivered to the Underwriter or, the case of any
Collateral Term Sheet required to be filed prior to such date, by 10:00 a.m. on
the second business day following the first day on which such Collateral Term
Sheet has been sent to a prospective investor; provided, however, that prior to
such filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, the Underwriter must comply with its obligations pursuant to Section
4.2 and the Company must receive a letter from _______________, certified public
accountants, satisfactory in form and substance to the Company and its counsel,
to the effect that such accountants have performed certain specified procedures,
all of which have been agreed to by the Company, as a result of which they
determined that all information that is included in the Computational Materials
(if any) provided by the Underwriter to the Company for filing on Form 8-K, as
provided in Section 4.2 and this Section 5.9, is accurate without exception. The
foregoing letter shall be at the sole expense of the Underwriter. The Company
shall file any corrected Computational Materials described in Section 4.2(f) as
soon as practicable following receipt thereof. The Company also will file with
the Commission within fifteen days of the issuance of the Certificates a Current
Report on Form 8-K (for purposes of filing the Pooling and Servicing Agreement).
6. Conditions to the Obligations of the Underwriter. The Underwriter's
obligation to purchase the Certificates shall be subject to the following
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; 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 Since _________ 1, ____ there shall have been no material
adverse change (not in the ordinary course of business) in the condition of the
Company.
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6.3 The Company shall have delivered to you a certificate,
dated the Closing Date, of the 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 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; and
(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.
6.4 You shall have received the opinions of Xxxxxxx Xxxxxxxx &
Xxxx, counsel for the Company and the Master Servicer, dated the Closing Date
and substantially to the effect set forth in Exhibit A-1 and Exhibit A-2, and
the opinion of [counsel to Master Servicer], dated the Closing Date and
substantially to the effect set forth in Exhibit B.
6.5 You shall have received from ________________________,
counsel for the Underwriter, an opinion dated the Closing Date in form and
substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from
________________________, certified public accountants, a letter 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
"Description of the Mortgage Pool", "Pooling and Servicing Agreement",
"Description of the Certificates" and "Certain Yield and Prepayment
Considerations" agrees with the records of the Company excluding any questions
of legal interpreta tion.
6.7 The Certificates shall have been rated "AAA" by [Standard
& Poor's Ratings Services] and [Fitch, Inc.]
6.8 You shall have received the opinion of [Trustee's
Counsel], dated the Closing Date, substantially to the effect set forth in
Exhibit C.
6.9 You shall have received from Xxxxxxx Xxxxxxxx & Xxxx,
counsel to the Company, reliance letters with respect to any opinions delivered
to [Standard & Poor's Ratings Services and Fitch, Inc.]
The Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
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7. Indemnification and Contribution.
7.1 The Company agrees to indemnify and hold harmless you and
each person, if any, who controls you within the meaning of either Section 15 of
the Act or Section 20 of the Securities Exchange Act of 1934, from and against
any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained 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
caused by 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; provided, that neither the Company, or you
will be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein relating to the
Excluded Information.
7.2 You agree to indemnify and hold harmless the Company, its
directors or officers and any person controlling the Company to the same extent
as the indemnity set forth in clause 7.1 above from the Company to you, but only
with respect to (i) the Underwriter Information and (ii) the Computational
Materials and ABS Term Sheets, except to the extent of any errors in the
Computational Materials or ABS Term Sheets that are caused by errors in the Pool
Information. In addition, you agree to indemnify and hold harmless the Company
its directors or officers and any person controlling the Company against any and
all losses, claims, damages, liabilities and expenses (including, without
limitation, reasonable attorneys' fees) caused by, resulting from, relating to,
or based upon any legend regarding original issue discount on any Certificate
resulting from incorrect information provided by the Underwriter in the
certificates described in Section 4.3 hereof.
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 clause 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 (i) 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. It is understood
that the indemnifying party shall not, in connection
-13-
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 clause 7.1 and by the Company, in the
case of parties indemnified pursuant to clause 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, but if settled with such consent or if
there 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.
7.4 If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under clause 7.1 or 7.2 hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect not only the relative benefits
received by the Company on the one hand and the Underwriter on the other from
the offering of the Certificates but also the relative fault of the Company on
the one hand and of the Underwriter, on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and of the Underwriter on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the 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 clause 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 except where the indemnified party is
required to bear such expenses pursuant to clause 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. 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
-14-
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 of (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. 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)
that shall have been reasonably incurred by the Underwriter in connection with
the proposed purchase and sale of the Certificates.
9. Certain Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the officers of the Company, and you 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 you or on your
behalf or made by or on behalf of the Company or any of its officers, directors
or controlling persons, and will survive delivery of and payment for the
Certificates.
10. 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 Cendant Mortgage Capital
LLC, 0000 Xxxxxxxxxx Xxxx, Xxxx Xxxx 0X, Mt. Laurel, New Jersey 08054.
11. 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.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
13. 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.
-15-
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,
CENDANT MORTGAGE CAPITAL LLC
By:
---------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
[NAME OF UNDERWRITER]
By:
---------------------------------
Name:
Title:
Cendant Mortgage Capital LLC
Series ______________
_______________ ___, ____ 1.
EXHIBIT A-1
[XXXXXXX XXXXXXXX & XXXX LETTERHEAD]
______________ ___, ____
Cendant Mortgage Capital LLC [Underwriter]
0000 Xxxxxxxxxx Xxxx ------------------------
Mt. Xxxxxx, New Jersey 08054 ------------------------
[Name of Master Servicer] [Trustee]
[Address of Master Servicer] ------------------------
------------------------
Opinion: Underwriting Agreement
Cendant Mortgage Capital LLC
Mortgage Pass-Through Certificates, Series ____-__
--------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Cendant Mortgage Capital LLC (the
"Company") and [Name of Master Servicer] (the "Master Servicer") 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, 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, ________, and the Prospectus Supplement, 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
Cendant Mortgage Capital LLC
Series ______________
_______________ ___, ____ 2.
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
Cendant Mortgage Capital LLC
Series ______________
_______________ ___, ____ 3.
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 Limited Liability Company Act 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
Cendant Mortgage Capital LLC
Series ______________
_______________ ___, ____ 4.
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.
Cendant Mortgage Capital LLC
Series ______________
_______________ ___, ____ 5.
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
Cendant Mortgage Capital LLC
_______________ ___, ____ 1.
EXHIBIT A-2
[XXXXXXX XXXXXXXX & XXXX LETTERHEAD]
______________ ___, ____
Supplemental Letter: Underwriting Agreement
Cendant Mortgage Capital LLC
Mortgage Pass-Through Certificates, Series ____-_____
-----------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Cendant Mortgage Capital LLC (the
"Company") and [Name of Master Servicer] (the "Master Servicer") 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, 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, ________, and the Prospectus Supplement, 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
Cendant Mortgage Capital LLC
_______________ ___, ____ 2.
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.
Cendant Mortgage Capital LLC
_______________ ___, ____ 3.
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
[Trustee]
[Underwriter]
____________________, _____ 1.
EXHIBIT B
[COUNSEL TO MASTER SERVICER LETTERHEAD]
_________________, _____
[Trustee]
------------------------
------------------------
------------------------
[Underwriter]
------------------------
------------------------
------------------------
Cendant Mortgage Capital LLC
Mortgage Pass-Through Certificates, Series -
------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Cendant Mortgage Capital LLC (the
"Company") and [Name of Master Servicer] (the "Master Servicer") 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, the Master Servicer and [The 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, ________, and the Prospectus Supplement, 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 [the 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").
[Trustee]
[Underwriter]
____________________, _____ 2.
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.
Based upon and stated in the foregoing, we are of the opinion that:
1. The Company is duly formed and the Master Servicer is duly
incorporated and each of the Company and the Master Servicer are validly
existing as a limited liability company and corporation, respectively, in good
standing under the laws of the State of Delaware and the State of __________,
respectively, and each has the requisite power and authority, corporate or
other, to own its properties and conduct its business, as presently conducted by
it, and to enter into and perform its obligations under the Agreements.
2. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and the Master Servicer and, upon due
authorization, execution and delivery by other parties thereto, will constitute
the valid, legal and binding agreements of the Company and the Master Servicer,
enforceable against the Company and the Master Servicer in accordance with its
terms.
3. No consent, approval, authorization or order of the State of
__________ or federal court or governmental agency or body is required for the
consummation by the Company or the Master Servicer of the transactions
contemplated by the terms of the Agreements, except for those consents,
approvals, authorizations or orders which previously have been obtained.
4. Neither the sale, issuance and delivery of the Underwritten
Certificates as provided in the Agreements, nor the consummation of any other of
the transactions contemplated by, or the fulfillment of any other of the terms
of, the Agreements, will result in a breach of any term or provision of the
Certificate of Formation or Limited Liability Agreement of the Company or the
charter or bylaws of the Master Servicer or any State of New Jersey or federal
statute or regulation or conflict with, result in a breach, violation or
acceleration of or constitute a default under the terms of any indenture or
other material agreement or instrument to which the Company or the Master
Servicer is a party or by which it is bound or any order or regulation of any
State of New Jersey or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company or the Master Servicer.
Very truly yours,
COUNSEL TO MASTER SERVICER
EXHIBIT C
[TRUSTEE'S COUNSEL'S LETTERHEAD]
________________, _____
[Underwriter]
------------------------ [Name of Master Servicer]
------------------------ [Address of Master Servicer]
------------------------
Cendant Mortgage Capital LLC
0000 Xxxxxxxxxx Xxxx
Xx. Xxxxxx, New Jersey 08054
[Trustee]
------------------------
------------------------
------------------------
Re: Cendant Mortgage Capital LLC
Mortgage Pass-Through Certificates, Series -
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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 Cendant Mortgage Capital
LLC, 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
Cendant Mortgage Capital LLC
____________________, _____ Page 2.
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.
4. In the event that the Master Servicer defaults in its
obligation to make Advances pursuant to Section 4.03(b) of the
Pooling and Servicing Agreement, the Trustee is not, as of the
date hereof, prohibited by any provision of its Restated
Organization Certificate or By-Laws or by any provision of the
banking and trust laws of the State of New York from assuming,
pursuant to Section 7.02 of the Pooling and Servicing
Agreement, the obligation to make such Advances.
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,
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EXHIBIT D
EXHIBIT E
Excluded Information
EXHIBIT F
Underwriter Information
EXHIBIT G
__________________, _____
Cendant Mortgage Capital LLC
0000 Xxxxxxxxxx Xxxx
Xx. Laurel, New Jersey 08054
Re: Cendant Mortgage Capital LLC
Mortgage Pass-Through Certificates,
Series - , Class A and Class R
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Pursuant to Section 4 of the Underwriting Agreement, dated
_______________, ____, between Cendant Mortgage Capital LLC 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, at 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 __________________, _____; (2) adding
such estimated fair market value to the aggregate purchase price of each class
of Certificates described in clause (i) 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.
Cendant Mortgage Capital LLC
__________________, ____ Page 2.
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By:
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Name:
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Title:
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EXHIBIT H
[Reserved]
EXHIBIT I
[Form of Legend]
