XXXXXXX XXXXX MORTGAGE TRUST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES ________
UNDERWRITING AGREEMENT
New York, New York
___________, 200_
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Four World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Underwriter 2]
[Address]
[Address]
[Underwriter 3]
[Address]
[Address]
Dear Sirs:
Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation (the
"Company"), will issue its Commercial Mortgage Pass-Through Certificates,
Xxxxxxx Xxxxx Mortgage Trust _______ (the "Certificates"), in __ classes (each,
a "Class") as designated in the Prospectus Supplement (as defined below). The
Company further proposes to sell to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), [Underwriter 2] ("____") and [Underwriter 3]
("____", and each of Xxxxxxx Xxxxx, [Underwriter 2] and [Underwriter 3], an
"Underwriter" and together, the "Underwriters") the Certificates set forth in
Schedule I hereto (the "Underwritten Certificates") in the respective original
principal amounts set forth in Schedule I. The Certificates represent in the
aggregate the entire beneficial ownership interest in a trust fund (the "Trust
Fund") consisting of a segregated pool (the "Mortgage Pool") of ___ mortgage
loans having an aggregate principal balance of $_____________ as of the Cut-Off
Date (the "Mortgage Loans") secured by first liens on the borrowers' fee or
leasehold interests in
multifamily and commercial properties (the "Mortgaged Properties"). The
Certificates will be issued on __________, 200_ (the "Closing Date"), pursuant
to a pooling and servicing agreement (the "Pooling and Servicing Agreement"),
dated as of __________, 200_, among the Company, [Master Servicer], as master
servicer (in such capacity, the "Master Servicer"), [Special Servicer], as
special servicer (the "Special Servicer"), [Trustee], as trustee (the "Trustee")
and [Fiscal Agent], as fiscal agent. ________ of the Mortgage Loans (the "MLMLI
Mortgage Loans"), having an aggregate principal balance of $_________ as of the
Cut-Off Date, will be acquired by the Company from Xxxxxxx Xxxxx Mortgage
Lending, Inc. ("MLMLI") pursuant to a mortgage loan purchase agreement, dated as
of ______, 200_ (the "MLMLI Mortgage Loan Purchase Agreement"), between MLMLI
and the Company. ______ of the Mortgage Loans (the "[Seller] Mortgage Loans"),
having an aggregate principal balance of $____________ as of the Cut-Off Date,
will be acquired by the Company from [Seller] ("[Seller]" and together with
MLMLI, the "Mortgage Loan Sellers") pursuant to a mortgage loan purchase
agreement, dated as of _________, 200_ (the "[Seller] Mortgage Loan Purchase
Agreement", and together with the MLMLI Mortgage Loan Purchase Agreement, the
"Mortgage Loan Purchase Agreements"), between [Seller] and the Company. The
cut-off date (the "Cut-Off Date") is _________, 200__ (or, in the case of one
[Seller] Mortgage Loan, _________, 200_). The Underwritten Certificates and the
Mortgage Pool are described more fully in Schedule I hereto and in a
registration statement furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents and
warrants to, and agrees with, each Underwriter that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. ----------
333-_______) on Form S-3 for the registration of Commercial Mortgage
Pass-Through Certificates, issuable in series, including the
Underwritten Certificates, under the Securities Act of 1933, as amended
(the "1933 Act"), 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 meets the requirements for use of Form
S-3 under the 1933 Act, and such registration statement, as amended at
the date hereof, meets the requirements set forth in Rule 415(a)(1)(x)
under the 1933 Act and complies in all other material respects with the
1933 Act and the rules and regulations thereunder. The Company proposes
to file with the Commission, with your consent, pursuant to Rule 424
under the 1933 Act, a supplement dated ________, 200_ (the "Prospectus
Supplement"), to the prospectus dated _________, 200_ (the "Basic
Prospectus"), relating to the Underwritten Certificates and the method
of distribution thereof, and has previously advised you of all further
information (financial and other) with respect to the Underwritten
Certificates and the Mortgage Pool to be set forth therein. Such
registration statement (No. 333-______), including all exhibits
thereto, is referred to herein as the "Registration Statement"; and the
Basic Prospectus and the Prospectus Supplement, together with any
amendment thereof or supplement thereto authorized by the Company prior
to the Closing Date for
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use in connection with the offering of the Underwritten Certificates,
are hereinafter called the "Prospectus". Any preliminary form of the
Prospectus Supplement that 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". If so stated in the Prospectus Supplement, the
Company will file with the Commission within fifteen days of the
issuance of the Underwritten Certificates a report on Form 8-K ("8-K")
setting forth specific information concerning the Mortgage Pool and the
Underwritten Certificates to the extent that such information is not
set forth in the Prospectus Supplement. As used herein, "Pool
Information" means the mortgage pool information reflected in the
Master Tape and the Prospectus Supplement. The "Master Tape" shall mean
the compilation of information and data regarding the MLMLI Mortgage
Loans covered by the letter rendered by ________________, and (ii) the
compilation of information and data regarding the [Seller] Mortgage
Loans covered by the letter rendered by ________________ (a "hard copy"
of which Master Tape was produced on behalf of the Mortgage Loan
Sellers) described in Section 6(h)(2) of this Agreement.
(ii) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the
1933 Act, as of the date on which, prior to the Closing Date, any
amendment to the Registration Statement becomes effective, as of the
date on which any supplement to the Prospectus Supplement is filed with
the Commission, and as of the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complies and will comply
in all material respects with the applicable requirements of the 1933
Act and the rules and regulations thereunder, (ii) the Registration
Statement, as amended as of any such time, does not include and will
not include any untrue statement of a material fact and does not omit
and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (iii) the Prospectus, as amended or supplemented as of
any such time, does not include and will not include any untrue
statement of a material fact and does not omit and will not 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,
not misleading; provided, however, that the Company makes no
representations or warranties as to (x) statements contained in or
omitted from the Registration Statement or the Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
any Underwriter through you specifically for use in the Registration
Statement and the Prospectus (such information being identified in
Section 8(b)) or (y) the Mortgage Loan Seller Covered Information (as
defined in Section 8 hereof).
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease or operate
its properties and to conduct its business as now conducted by it and
to enter into and perform its
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obligations under this Agreement and the Pooling and Servicing
Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business.
(iv) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the
1933 Act, as of the date on which, prior to the Closing Date, any
amendment to the Registration Statement becomes effective, as of the
date on which any supplement to the Prospectus Supplement is filed with
the Commission, and as of the Closing Date, there has not and will not
have been (i) any request by the Commission for any further amendment
to the Registration Statement or the Prospectus or for any additional
information, (ii) any issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose or (iii) any
notification with respect to the suspension of the qualification of the
Underwritten Certificates for sale in any jurisdiction or any
initiation or threat of any proceeding for such purpose.
(v) Each of this Agreement, the Pooling and Servicing
Agreement and each Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Company and each of this
Agreement, the Pooling and Servicing Agreement and each Mortgage Loan
Purchase Agreement constitutes legal, valid and binding agreements of
the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of the rights of creditors
generally, (ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law, and (iii) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions
of this Agreement, the Pooling and Servicing Agreement or any Mortgage
Loan Purchase Agreement that purport to provide indemnification from
securities law liabilities.
(vi) As of the Closing Date, the Underwritten Certificates,
the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements will conform in all material respects to the respective
descriptions thereof contained in the Prospectus. As of the Closing
Date, the Underwritten Certificates will be duly and validly authorized
and, when delivered in accordance with the Pooling and Servicing
Agreement to you against payment therefor as provided herein, will be
duly and validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement.
(vii) The Company is not in violation of its certificate of
incorporation or by-laws or in default under any agreement, indenture
or instrument the effect of which violation or default would be
material to the Company or which violation or default would have a
material adverse affect on the performance of its
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obligations under this Agreement, the Pooling and Servicing Agreement
or the Mortgage Loan Purchase Agreements. Neither the issuance and sale
of the Underwritten Certificates, nor the execution and delivery by the
Company of this Agreement, the Pooling and Servicing Agreement or the
Mortgage Loan Purchase Agreements, nor the consummation by the Company
of any of the transactions herein or therein contemplated, nor
compliance by the Company with the provisions hereof or thereof, did,
does or will conflict with or result in a breach of any term or
provision of the certificate of incorporation or by-laws of the Company
or conflict with, result in a breach, violation or acceleration of, or
constitute a default under, the terms of any indenture or other
agreement or instrument to which the Company is a party or by which it
or any material asset is bound, or any statute, order or regulation
applicable to the Company of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company.
(viii) There is no action, suit or proceeding against the
Company pending, or, to the knowledge of the Company, threatened,
before any court, arbitrator, administrative agency or other tribunal
(i) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements or the
Underwritten Certificates, (ii) seeking to prevent the issuance of the
Underwritten Certificates or the consummation of any of the
transactions contemplated by this Agreement (iii) that 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, the Mortgage Loan Purchase Agreements
or the Underwritten Certificates or (iv) seeking to affect adversely
the federal income tax attributes of the Underwritten Certificates as
described in the Prospectus.
(ix) There are no contracts, indentures or other documents of
a character required by the 1933 Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement which have not been so described or referred to therein or so
filed or incorporated by reference as exhibits thereto.
(x) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering or sale of the Underwritten Certificates pursuant to this
Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and
offer and sale of the Underwritten Certificates by the Underwriters and
any recordation of the respective assignments of the Mortgage Loans to
the Trustee pursuant to the Pooling and Servicing Agreement that have
not been completed.
(xi) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and the
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Company has not received any notice of proceedings relating to the
revocation or modification of any such license, certificate, authority
or permit which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company.
(xii) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and the
delivery and sale of the Underwritten Certificates (other than such
federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the
Closing Date.
(xiii) Neither the Company nor the Trust Fund is, and neither
the sale of the Underwritten Certificates in the manner contemplated by
the Prospectus nor the activities of the Trust Fund pursuant to the
Pooling and Servicing Agreement will cause the Company or the Trust
Fund to be, 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 (the "Investment Company Act").
(xiv) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Company reported the transfer
of the Mortgage Loans to the Trustee in exchange for the Underwritten
Certificates and will report the sale of the Underwritten Certificates
to the Underwriters pursuant to this Agreement as a sale of the
interests in the Mortgage Loans evidenced by the Underwritten
Certificates. The consideration received by the Company upon the sale
of the Underwritten Certificates to the Underwriters will constitute
reasonably equivalent value and fair consideration for the Underwritten
Certificates. The Company will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Underwritten
Certificates to the Underwriters. In addition, the Company was solvent
at all relevant times prior to, and was not rendered insolvent by, the
transfer of the Mortgage Loans to the Trustee on behalf of the Trust
Fund. The Company is not selling the Underwritten Certificates to the
Underwriters and did not transfer the Mortgage Loans to the Trustee on
behalf of the Trust Fund with any intent to hinder, delay or defraud
any of the creditors of the Company.
(xv) At the Closing Date, the respective classes of
Underwritten Certificates shall continue to have maintained ratings no
lower than those set forth in Schedule I hereto by the nationally
recognized statistical rating organizations identified in Schedule I
hereto (individually and collectively, the "Rating Agency").
(b) MLMLI represents and warrants to, and agrees with, each
Underwriter, that:
(i) MLMLI has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware and
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possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of
this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by MLMLI and, assuming due authorization,
execution and delivery hereof by the Company and the Underwriters,
constitutes a legal, valid and binding obligation of MLMLI, enforceable
against MLMLI in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights in
general, as they may be applied in the context of the insolvency of a
national banking association, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law), and by public policy considerations underlying
the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities
under applicable securities laws.
(iii) The execution and delivery of this Agreement by MLMLI
and MLMLI's performance and compliance with the terms of this Agreement
will not (A) violate the articles of incorporation or bylaws of MLMLI,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any contract, agreement or other
instrument to which MLMLI is a party or by which MLMLI is bound.
(iv) MLMLI is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default
might have consequences that would materially and adversely affect the
condition (financial or other) or operations of MLMLI or its properties
or have consequences that would materially and adversely affect its
performance hereunder.
(v) MLMLI is not a party to or bound by any agreement or
instrument or subject to any articles of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would materially and adversely affect
the ability of MLMLI to perform its obligations under this Agreement or
that requires the consent of any third person to the execution of this
Agreement or the performance by MLMLI of its obligations under this
Agreement (except to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by MLMLI of or compliance by MLMLI with this Agreement
or the consummation of the transactions contemplated by this Agreement
except as have previously been obtained.
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(vii) No litigation is pending or, to the best of MLMLI
knowledge, threatened against MLMLI that would prohibit its entering
into this Agreement or materially and adversely affect the performance
by MLMLI of its obligations under this Agreement.
(viii) Each representation and warranty of the Company set
forth in Section 1(a) hereof is true and correct as of the date hereof
or as of the date specified in such representation and warranty.
(c) Each Underwriter represents and warrants to the Company that, as of
the date hereof and as of the Closing Date, (i) such Underwriter has complied in
all material respects with all of its obligations under Section 4 hereof and
(ii) with respect to all Computational Materials and Term Sheets (as such terms
are defined in Section 4 hereof), if any, provided by such Underwriter to the
Company pursuant to Section 4(b)(iv), such Computational Materials and Term
Sheets are accurate in all material respects (taking into account the
assumptions explicitly set forth or otherwise referred to in the Computational
Materials or in the Prospectus Supplement or Term Sheets or the Preliminary
Prospectus Supplement, and provided that the underlying data regarding the
Mortgage Loans, and the related Mortgagors and Mortgaged Properties, provided to
the Underwriters by the Mortgage Loan Sellers is accurate and complete in all
material respects) and constitute a complete set of all Computational Materials
and Term Sheets that are required to be filed with the Commission pursuant to
the No-Action Letters (as defined herein).
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at the applicable purchase prices set
forth in Schedule I hereto, the respective principal amounts of the Underwritten
Certificates set forth below the name of each Underwriter set forth in Schedule
II hereto, and any additional portions of the Underwritten Certificates that any
such Underwriter may be obligated to purchase pursuant to Section 10, in all
cases plus accrued interest as set forth in Schedule I.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Underwritten
Certificates shall be made in the manner, at the location(s), on the Closing
Date at the time specified in Schedule I hereto (or such later date not later
than ten business days after such specified date as you shall designate), which
date and time may be changed by agreement between you and the Company or as
provided in Section 10 hereof. Delivery of the Underwritten Certificates shall
be made either directly to you or through the facilities of The Depository Trust
Company ("DTC"), as specified in Schedule I hereto, for the respective accounts
of the Underwriters against payment by the respective Underwriters of the
purchase price therefor in immediately available funds wired to such bank as may
be designated by the Company, or such other manner of payment as may be agreed
upon by the Company and you. Any Class of Underwritten Certificates to be
delivered through the facilities of DTC shall be represented by one or more
global Certificates registered in the name of Cede & Co., as nominee of DTC,
which global Certificate(s) shall be placed in the custody of DTC not later than
10:00 a.m. (New York City time) on the Closing Date pursuant to a custodial
arrangement to be entered into between the Trustee or its agent and DTC. Unless
delivered through the facilities of DTC,
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the Underwritten Certificates shall be in fully registered certificated form, in
such denominations and registered in such names as you may have requested in
writing not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates, including the
global Certificates representing the Underwritten Certificates to be delivered
through the facilities of DTC, available for inspection, checking and, if
applicable, packaging by you in New York, New York, not later than the close of
business (New York City time) on the business day preceding the Closing Date.
References herein, including, without limitation, in the
Schedules hereto, to actions taken or to be taken following the Closing Date
with respect to any Underwritten Certificates that are to be delivered through
the facilities of DTC shall include, if the context so permits, actions taken or
to be taken with respect to the interests in such Certificates as reflected on
the books and records of DTC.
4. OFFERING BY UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without limitation,
in and from the State of New York, as set forth in the Prospectus Supplement. It
is further understood that the Company, in reliance upon an exemption from the
Attorney General of the State of New York to be granted pursuant to Policy
Statement 104 and 105, has not and will not file the offering pursuant to
Section 352-e of the General Business Law of the State of New York with respect
to the Underwritten Certificates.
(b) Each Underwriter may prepare and provide to prospective investors
certain Computational Materials, ABS Term Sheets, Structural Term Sheets or
Collateral Term Sheets in connection with its offering of the Certificates,
subject to the following conditions:
(i) Such Underwriter shall comply with the requirements of the
no-action letter, dated May 20, 1994, issued by the Commission to
Xxxxxx, Peabody 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
25, 1994 (collectively, the "Xxxxxx/PSA Letter"), and the requirements
of the no-action letter, dated 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").
(ii) For purposes hereof, "Computational Materials" shall have
the meaning given such term in the No-Action Letters, but shall include
only (x) the Computational Materials attached hereto as Exhibit A and
(y) such other Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of such
Underwriter. For purposes hereof, "ABS Term Sheets," "Structural Term
Sheets" and "Collateral Term Sheets" shall have the meanings given such
terms in the PSA Letter but shall include only (x) the
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Term Sheets attached hereto as Exhibit B and (y) those other ABS Term
Sheets, Structural Term Sheets or Collateral Term Sheets that have been
prepared for or delivered to prospective investors by or at the
direction of such Underwriter. As used herein, "Term Sheets" means any
ABS Term Sheets, Structural Term Sheets and/or Collateral Term Sheets.
(iii) All Computational Materials and ABS Term Sheets provided
to prospective investors shall bear a legend in a form previously
approved by the Company or its counsel.
(iv) Such Underwriter shall not distribute any such
Computational Materials or Term Sheets unless the forms and methodology
thereof are in accordance with this Agreement. Such Underwriter shall
provide to the Company, for filing on Form 8-K as provided in Section
5(g), copies (in such format as required by the Company) of all
Computational Materials and Term Sheets. 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
Term Sheets described in this subsection (iv) must be provided to the
Company (a) in paper or electronic format suitable for filing with the
Commission and (b) not later than 10:00 a.m. (New York City time) on a
business day that is not less than one business day before filing
thereof is required pursuant to the terms of the No-Action Letters.
(v) All information included in the Computational Materials
and Term Sheets shall be generated based on substantially the same
methodology and assumptions as are used to generate the information in
the Prospectus Supplement as set forth therein; provided that the
Computational Materials and Term Sheets may include information based
on alternative methodologies or assumptions if specified therein. If
any Computational Materials or Term Sheets were based on assumptions
with respect to the Mortgage Pool that differ from the final Pool
Information in any material respect or on Underwritten Certificate
structuring assumptions (except in the case of Computational Materials
when the different structuring terms were hypothesized and so
described) that were revised in any material respect prior to the
printing of the Prospectus, then to the extent that it has not already
done so, such Underwriter shall immediately inform the Company and,
upon the direction of the Company, and if not corrected by the
Prospectus, shall prepare revised Computational Materials and Term
Sheets, as the case may be, based on the final collateral information
and structuring assumptions, circulate such revised Computational
Materials and Term Sheets to all recipients of the preliminary versions
thereof, and include such revised Computational Materials and Term
Sheets (marked, "as revised") in the materials delivered to the Company
pursuant to subsection (iv) above.
(vi) If, within the period during which the Prospectus
relating to the Underwritten Certificates is required to be delivered
under the 1933 Act, any Computational Materials or Term Sheets are
determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or,
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when read together with the Prospectus, a material omission, then
(unless the material error or omission was corrected in the Prospectus)
the Underwriter shall prepare a corrected version of such Computational
Materials or Term Sheets, shall circulate such corrected Computational
Materials or Term Sheets to all recipients of the prior versions
thereof, and shall deliver copies of such corrected Computational
Materials or Term Sheets (marked, "as corrected") to the Company for
filing with the Commission in a subsequent Form 8-K submission (subject
to the Company's obtaining an accountant's comfort letter in respect of
such corrected Computational Materials and Term Sheets, which shall be
at the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have represented, as
of the Closing Date, that except for Computational Materials and/or
Term Sheets provided to the Company pursuant to subsection (iv) above,
such Underwriter did not provide any prospective investors with any
information in written or electronic form in connection with the
offering of the Underwritten Certificates that is required to be filed
with the Commission in accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and Term
Sheets required to be delivered in accordance with subsection (iv)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing
Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with its agreement set forth in
Section 5(g) to file the Computational Materials and Term Sheets by the
time specified therein.
(ix) Computational Materials and Term Sheets may be
distributed by the Underwriter through electronic means in accordance
with SEC Release No. 33-7233 or other applicable laws or regulations.
(c) Each Underwriter further agrees that it shall promptly provide the
Company with such 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 Underwritten Certificates to the extent such
information can in the good faith judgment of the Underwriter be reasonably
determined by it.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(a) The Company will not file any amendment to the Registration
Statement (other than by reason of Rule 429 under the 0000 Xxx) or any
supplement to the Basic Prospectus relating to or affecting the Underwritten
Certificates, unless the Company has furnished a copy to you for your review
prior to filing, and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company will
cause the Prospectus Supplement to be transmitted to the Commission for filing
pursuant to
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Rule 424 under the 1933 Act or will cause the Prospectus Supplement to be filed
with the Commission pursuant to said Rule 424. The Company promptly will advise
you or counsel for the Underwriters (i) when the Prospectus Supplement shall
have been filed or transmitted to the Commission for filing pursuant to Rule
424, (ii) when any amendment to the Registration Statement shall have become
effective, (iii) of any request by the Commission to amend the Registration
Statement or supplement the Prospectus Supplement or for any additional
information in respect of the offering contemplated hereby, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto which shall have
become effective on or prior to the Closing Date or the institution or
threatening of any proceeding for that purpose, and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Underwritten Certificates for sale in any jurisdiction or the institution
or threatening of any proceeding for that purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or suspension and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten
Certificates is required to be delivered under the 1933 Act, any event occurs as
a result of which the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to amend
or supplement the Prospectus to comply with the 1933 Act or the rules and
regulations thereunder, the Company promptly will prepare and file with the
Commission, at the expense of the Company, subject to paragraph (a) of this
Section 5, an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance and, if such amendment
or supplement is required to be contained in a post-effective amendment to the
Registration Statement, the Company will use its best efforts to cause such
amendment to the Registration Statement to be made effective as soon as
possible.
(c) The Company will furnish to you and to counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and so long as delivery of a
prospectus by an Underwriter or dealer may be required by the 1933 Act, as many
copies of any Preliminary Prospectus Supplement, the Prospectus Supplement and
the Basic Prospectus and any amendments and supplements thereto as you may
reasonably request.
(d) The Company will furnish such information, execute such instruments
and take such action, if any, as may be required to qualify the Underwritten
Certificates for sale under the laws of such jurisdictions as you may designate
and will maintain such qualifications in effect so long as required for the
distribution of the Underwritten Certificates; provided, however, that the
Company shall not be required to qualify to do business in any jurisdiction
where it is not now 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
subject to such service of process.
(e) The Company will pay, or cause to be paid, all costs and expenses
in connection with the transactions herein contemplated pursuant to the Terms
for Xxxxxxx Xxxxx/___ Joint Securitization, dated _________, 200_, between
[Seller] and Xxxxxxx Xxxxx & Co.
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(f) To the extent that the Pooling and Servicing Agreement provides
that the Underwriters are to receive any notices or reports, or have any other
rights thereunder, the Company will enforce the rights of the Underwriters under
the Pooling and Servicing Agreement and will not consent to any amendment of the
Pooling and Servicing Agreement that would adversely affect such rights of the
Underwriters.
(g) The Company shall, as to itself, and the Company, or pursuant to
the Pooling and Servicing Agreement the Trustee, will be required to, as to the
Trust Fund, satisfy and comply with all reporting requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations
thereunder. The Company will also file with the Commission a report on Form 8-K
setting forth all Computational Materials and Term Sheets provided to the
Company by an Underwriter and identified by it as such within the time period
allotted for such filing pursuant to the No-Action Letters; provided, however,
that prior to such filing of the Computational Materials and Term Sheets by the
Company, each Underwriter must comply with its obligations pursuant to Section
4(b). The Company shall file any corrected Computational Materials described in
Section 4(b)(vi) as soon as practicable following receipt thereof.
(h) The Company shall take all reasonable action necessary to enable
the Rating Agencies to provide their respective credit ratings of the
Certificates as described in the Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligation of
each Underwriter hereunder to purchase its allocated share of the Underwritten
Certificates shall be subject to: (i) the accuracy of the representations and
warranties on the part of the Company contained herein as of the date hereof, as
of the date of the effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date, as of the date the Prospectus Supplement or any
supplement thereto is filed with the Commission and as of the Closing Date; (ii)
the accuracy of the statements of the Company made in any certificates delivered
pursuant to the provisions hereof; (iii) the performance by the Company of its
obligations hereunder; and (iv) the following additional conditions:
(a) The Registration Statement shall have become effective and no stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and not withdrawn and no proceedings
for that purpose shall have been instituted or, to the Company's knowledge,
threatened; and the Prospectus Supplement shall have been filed or transmitted
for filing with the Commission in accordance with Rule 424 under the 1933 Act;
(b) You shall have received from ________________, counsel for the
Underwriters, an opinion, dated the Closing Date, that, subject to the
limitations and qualifications set forth therein, based on conferences and
telephone conversations with representatives of MLMLI, [Seller], the
Underwriters, the Company, the Trustee, the Master Servicer, the Special
Servicer and their respective counsel, and (with limited exception) without
having reviewed any of the mortgage notes, mortgages or other documents relating
to the Mortgage Loans or made any inquiry of any originator of any Mortgage
Loan, nothing has come to such counsel's attention in the course of its review
of the Prospectus and the Registration
-13-
Statement that would lead it to believe that, (a) as of the date of the
Prospectus, the Registration Statement contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (b) that as of
its date or as of the date hereof, the Prospectus contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that counsel expresses no view as to any information incorporated by reference
in the Registration Statement or the Prospectus or as to the adequacy or
accuracy of (i) the financial, numerical, statistical or quantitative
information included in the Registration Statement or the Prospectus or (ii) any
information contained in any computer disk, CD-ROM or other electronic media
accompanying the Prospectus.
(c) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the Closing
Date, to the effect that: (i) the representations and warranties of the Company
in this Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on the Closing Date; and (ii) the
Company has in all material respects complied with all the agreements and
satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date; and MLMLI shall have
delivered to you a certificate of MLMLI, signed by an authorized officer of
MLMLI and dated the Closing Date, of the President, a Senior Vice President or a
Vice President of MLMLI to the effect that: (i) the representations and
warranties of MLMLI in this Agreement are true and correct in all material
respects at and as of the Closing Date and with the same effect as if made on
the Closing Date; and (ii) MLMLI 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;
(d) You shall have received with respect to each of MLMLI and the
Company, a good standing certificate from the Secretary of State of the State of
Delaware, each good standing certificate dated not earlier than 30 days prior to
the Closing Date;
(e) (i) You shall have received from the Secretary or an assistant
secretary of the Company, in his individual capacity, a certificate, dated the
Closing Date, to the effect that: (x) each individual who, as an officer or
representative of the Company, signed this Agreement, or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures; and (y) no event (including, without limitation, any act or omission
on the part of the Company) has occurred since the date of the good standing
certificate referred to in paragraph 6(d) above which has affected the good
standing of the Company under the laws of the State of Delaware. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of the Company) of the certificate of
incorporation and by-laws of the Company, as in effect on the Closing Date, and
of the resolutions of the Company and any required shareholder consent relating
to the transactions contemplated in this Agreement; and (ii) you shall have
received from the Secretary or an assistant secretary of MLMLI, in his
individual capacity, a certificate, dated the Closing Date, to the effect that:
(x) each individual who, as an officer or representative of MLMLI, signed this
-14-
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (y) no event (including,
without limitation, any act or omission on the part of MLMLI) has occurred since
the date of the certificate referred to in paragraph 6(d) above which has
affected the existence of MLMLI under the laws of the United States of America.
Such certificate shall be accompanied by true and complete copies (certified as
such by the Secretary or an assistant secretary of MLMLI) of the articles of
incorporation and by-laws of MLMLI, as in effect on the Closing Date, and of the
resolutions of MLMLI and any required shareholder consent relating to the
transactions contemplated in this Agreement;
(f) You shall have received from ____________, special counsel for the
Company, a favorable opinion, dated the Closing Date and satisfactory in form
and substance to you and counsel for the Underwriters, generally to the effect
that:
(i) The Registration Statement and any amendments thereto have
become effective under the 1933 Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement, as amended, has been issued and not withdrawn, no
proceedings for that purpose have been instituted or threatened and not
terminated; and the Registration Statement, the Basic Prospectus, the
Prospectus Supplement and each amendment or supplement thereto, as of
their respective effective or issue dates (other than the financial
statements, schedules and other financial and statistical information
contained therein as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the 1933 Act and the rules and regulations thereunder;
and such counsel has no reason to believe that (A) the Registration
Statement (which, for purposes of this clause, shall be deemed not to
include any exhibits filed therewith), or any amendment thereto, at the
time it became effective, contained or, as of the date of such opinion,
contains any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that (B) the Prospectus,
as amended or supplemented, as of the respective date thereof and at
the date hereof, contained or contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading (other than the financial statements,
schedules and other financial and statistical information contained
therein as to which such counsel need express no opinion);
(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement,
as amended, or the Prospectus or to be filed as exhibits to the
Registration Statement, as amended, other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto;
-15-
(iii) Assuming this Agreement has been duly authorized,
executed and delivered by the Company and MLMLI, it constitutes a
valid, legal, binding and enforceable agreement of each of the Company
and MLMLI, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law and public
policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purports to provide indemnification
from securities law liabilities;
(iv) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund created by the Pooling and Servicing Agreement is not
required to be registered under the Investment Company Act, as amended;
(v) The statements set forth in the Prospectus Supplement
under the heading "Description of the Offered Certificates", insofar as
such statements purport to summarize material terms of the Underwritten
Certificates, are correct in all material respects;
(vi) The statements set forth in the Basic Prospectus and the
Prospectus Supplement under the headings "Federal Income Tax
Consequences", "ERISA Considerations" and "Legal Investment", to the
extent that they constitute matters of federal law or legal conclusions
with respect thereto, are correct in all material respects with respect
to those consequences or aspects that are discussed;
(vii) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with the Underwriting
Agreement will be validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement.
(viii) Each Mortgage Loan Purchase Agreement and the Pooling
and Servicing Agreement constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, liquidation, receivership, moratorium,
reorganization and similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law), and except that: (a)
provisions purporting to waive or limit rights to trial by jury, oral
amendments to written agreements or rights of set-off, (b) provisions
relating to submission to jurisdiction, venue or service of process,
(c) interest on interest provisions or (d) severability clauses may be
limited by applicable law or considerations of public policy;
(ix) No consent, approval, authorization or order of any State
of New York or federal court or governmental agency or body is required
for the
-16-
consummation by the Company of the transactions contemplated herein,
except (A) such as have been obtained under the 1933 Act; (B) such as
may be required under the blue sky laws of any jurisdiction in
connection with the offer and sale of the Underwritten Certificates by
the Underwriters, as to which such counsel need express no opinion; and
(C) any recordation of the assignments of the Mortgage Loans pursuant
to the Pooling and Servicing Agreement that has not yet been completed;
and
(x) Assuming compliance with all provisions of the Pooling and
Servicing Agreement, (i) REMIC I and REMIC II will each qualify as a
real estate mortgage investment conduit (a "REMIC") within the meaning
of Sections 860A through 860G (the "REMIC Provisions") of the Internal
Revenue Code of 1986, as amended, (the "Code"), (ii) the REMIC I
Regular Interests and the Regular Certificates will be "regular
interests" (within the meaning of Section 860G(a)(1) of the Code) in
REMIC I and REMIC II, respectively, (iii) the Class R-I Certificates
and the Class R-II Certificates will be the sole class of "residual
interests" (within the meaning of Section 860G(a)(2) of the Code) in
REMIC I and REMIC II, respectively, and (iv) the portion of the Trust
Fund consisting of Grantor Trust Assets will be treated as a grantor
trust for federal income tax purposes and the Class Z-I Certificates
and the Class Z-II Certificates will represent undivided beneficial
interests in the Grantor Trust Assets.
With respect to such opinion, such counsel may express its
reliance as to factual matters on the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement and the Pooling and Servicing Agreement; may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company; may qualify such
opinion only as to the federal laws of the United States of America, the laws of
the State of New York, the laws of the State of ________________ and the
corporation law of the State of Delaware; and may, to the extent deemed
necessary by such counsel, rely on the opinion of counsel in the regular employ
of the Company or any affiliate of the Company or independent ________________
counsel. Such counsel shall also confirm that the Underwriters may rely, on and
as of the Closing Date, on any opinion or opinions of such counsel submitted to
any Rating Agency as if addressed to the Underwriters and dated the Closing
Date.
(g) You shall have received from ________________, in-house counsel for
the Company and MLMLI, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to you and counsel for the Underwriters, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has the corporate power and authority to
execute and deliver, and perform its obligations under, this Agreement.
(iii) Neither the sale of the Underwritten Certificates, nor
the execution or delivery of or performance under this Agreement, nor
the consummation of any
-17-
other of the transactions contemplated herein will conflict with or
result in a breach or violation of any term or provision of, or
constitute a default (or an event which with the passing of time or
notification, or both, would constitute a default) under, the
organizational documents of the Company, or, to the knowledge of such
counsel, any indenture or other agreement or instrument to which the
Company is a party or by which it is bound, or any State of Delaware or
federal statute or regulation applicable to the Company, or, to the
knowledge of such counsel, any order of any State of Delaware or
federal court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company.
(iv) MLMLI has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware.
(v) MLMLI has the corporate power and authority to execute and
deliver, and perform its obligations under, this Agreement.
(vi) To the best knowledge of such counsel, there are no
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 or financial condition of the Company, (b)
asserting the invalidity of this Agreement or the Underwritten
Certificates, (c) seeking to prevent the sale of the Underwritten
Certificates or the consummation by the Company of any of the
transactions contemplated by this Agreement, as the case may be, 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 or the Underwritten Certificates;
(vii) This Agreement has been duly authorized, executed and
delivered by each of the Company and MLMLI.
(viii) No consent, approval, authorization or order of any
federal or state court or governmental agency or body is required for
the consummation by MLMLI or the Company of the transactions
contemplated by this Agreement, except those consents, approvals,
authorizations or orders that previously have been obtained or as may
be required under federal or state securities laws, as to which such
counsel expresses no opinion.
(ix) The fulfillment of the terms of this Agreement will not
conflict with or result in a breach or violation of any term or
provision of, or constitute a default (or an event which with the
passing of time or notification, or both, would constitute a material
default) under, the articles of incorporation or by-laws of MLMLI or,
to such counsel's knowledge, any contract, agreement or other
instrument to which MLMLI is a party or by which it is bound, or any
federal statute or regulation applicable to MLMLI or, to such counsel's
knowledge, any
-18-
order of any federal court, regulatory body, administrative agency or
governmental body having jurisdiction over MLMLI.
(x) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending before or threatened by
any court, administrative agency or other tribunal to which MLMLI is a
party or of which any of its properties is the subject (a) which, if
determined adversely to MLMLI, would have a material adverse effect on
the business or financial condition of MLMLI, (b) asserting the
invalidity of this Agreement, (c) seeking to prevent the consummation
by MLMLI of any of the transactions contemplated by this Agreement or
(d) which might materially and adversely affect the performance by
MLMLI of its obligations under, or the validity or enforceability of
this Agreement.
(h) You shall have received from ________________ and/or
______________, certified public accountants, a letter(s) satisfactory in form
and substance to you and counsel for the Underwriters, to the following effect:
(1) they have performed certain specified procedures as a result
of which they have determined that the information of an
accounting, financial or statistical nature set forth in the
Prospectus Supplement under the headings "Summary of
Prospectus Supplement," "Description of the Mortgage Pool" and
"Yield and Maturity Considerations" and on [Annex X-0, Xxxxx
X-0, Xxxxx X-0, Xxxxx A-4 and Annex A-5] agrees with the
Master Tape prepared by or on behalf of the Mortgage Loan
Sellers, unless non-material deviations are otherwise noted in
such letter; and
(2) they have compared the data contained in the Master Tape
referred to in the immediately preceding clause (1) to
information contained in an agreed upon sampling of the
Mortgage Loan files and in such other sources as shall be
specified by them, and found such data and information to be
in agreement in all material respects, unless non-material
deviations are otherwise noted in such letter;
(i) You shall have received written confirmation from the Rating
Agencies that the ratings assigned to the Underwritten Certificates on the
Closing Date are as described on Schedule I hereto and that, as of the Closing
Date, no notice has been given of (i) any intended or possible downgrading or
(ii) any review or possible changes in such ratings;
(j) You shall have received from the Secretary or an assistant
secretary of the Trustee, in his individual capacity, a certificate, dated the
Closing Date, to the effect that the information under the heading "Description
of the Offered Certificates--The Trustee" in the Prospectus Supplement is true
and correct in all material respects;
-19-
(k) You shall have received from ___________________, counsel for the
Trustee, a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters;
(l) You shall have received from the Secretary or an assistant
secretary of the Master Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Master Servicer under the heading "Servicing of the Underlying Mortgage
Loans--The Initial Master Servicer and the Initial Special Servicer" in the
Prospectus Supplement, is true and correct in all material respects;
(m) You shall have received from _______________, counsel for the
Master Servicer, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters;
(n) You shall have received from the Secretary or an assistant
secretary of the Special Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Special Servicer under the heading "Servicing of the Underlying Mortgage
Loans--The Initial Master Servicer and the Initial Special Servicer" in the
Prospectus Supplement, is true and correct in all material respects;
(o) You shall have received from ___________, counsel for the Special
Servicer, a favorable opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriters and counsel for the Underwriters;
(p) You shall have received from Xxxxxx Xxxxxxxx, in-house counsel for
MLMLI, as Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in
form the substance satisfactory to the Underwriters and counsel for the
Underwriters;
(q) You shall have received from ____________, special counsel to the
Company, any opinions supplied to the Rating Agencies relating to certain
matters with respect to the Underwritten Certificates, the transfer of the
Mortgage Loans and any other matters related thereto. Any such opinions shall be
dated the Closing Date and addressed to the Underwriters; and
(r) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be satisfactory in form
and substance to you and counsel for the Underwriters, and you and such counsel
shall have received such additional information, certificates and documents as
you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, if the Company is in breach of any covenants or agreements contained
herein or if any of the opinions and certificates referred to above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to you and counsel for the Underwriters, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by you. Notice of such cancellation shall be
given to the Company in writing, or by telephone or telegraph confirmed in
writing.
-20-
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company will
reimburse, or cause to be reimbursed, the Underwriters severally, upon demand,
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Underwritten Certificates pursuant to [an agreement
between Xxxxxxx Xxxxx & Co. and third parties].
8. INDEMNIFICATION.
(a) The Company and MLMLI, jointly and severally, agree to indemnify
and hold harmless each Underwriter, its officers and directors and each person,
if any, who controls such Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Basic Prospectus, any Preliminary
Prospectus Supplement or the Prospectus Supplement (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided the foregoing indemnity shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting claims giving rise to any
such losses, claims, damages, expenses or liabilities purchased
Underwritten Certificates if such untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus
Supplement or Prospectus is eliminated or remedied in the Prospectus or
a corrected and amended Prospectus, as applicable, and, if required by
law, a copy of the Prospectus (as corrected or amended, if applicable)
shall not have been sent to such person at or prior to the written
confirmation of the sale of such Certificates to such person unless
such failure to deliver the Prospectus (as corrected or amended, if
applicable) was a result of the Company's failure to furnish copies
thereof in sufficient quantity; provided, however, that the indemnity
provided by this Section 8(a) shall not apply to any loss, liability,
claim, damage or expense to the extent any such untrue statement or
alleged untrue statement or omission or alleged omission arises out of
or is based upon an untrue statement or omission with respect to Seller
Information as defined in Section 7 of each of the related Mortgage
Loan Purchase Agreements (the "Mortgage Loan Seller Covered
Information"); provided further that, the indemnification provided by
this Section 8 shall not apply to the extent that such untrue statement
or omission of a material
-21-
fact was made as a result of an error in the manipulation of, or in any
calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties set forth in the Master Tape or Annex A to the
Prospectus Supplement to the extent such information was materially
incorrect in the Master Tape or such Annex A, as applicable, including
without limitation the aggregation of such information relating to the
Mortgage Loans in the Trust Fund or the information provided by the
related Mortgage Loan Sellers;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that the indemnity provided by this Section 8(a) shall not
apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information (as specified in
Section 8(b) below) furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or in the Basic
Prospectus, any Preliminary Prospectus Supplement or the Prospectus Supplement
(or any amendment or supplement thereto).
(b) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or in
the Basic Prospectus, any Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or in
the Basic Prospectus, such Preliminary Prospectus Supplement or the Prospectus
Supplement (or any amendment or supplement thereto); provided, that no such
material misstatement or omission arises from an error or omission in
information relating to the underlying data regarding the Mortgage Loans or the
related Mortgagors or Mortgaged Properties provided by the Company or
-22-
any Mortgage Loan Seller to such Underwriter; in addition, each Underwriter,
severally but not jointly, shall indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement and each
person, if any, who controls the Company within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all losses,
liabilities, claims and damages as incurred arising out of any untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
of a material fact contained in any Term Sheets or Computational Materials
which, when read together with any Preliminary Prospectus Supplement and the
Prospectus Supplement, was required to be stated therein or necessary to make
the statements therein not misleading; provided, that no such material
misstatement or omission arises from an error or omission in information
relating to the underlying data regarding the Mortgage Loans or the related
Mortgagors or Mortgaged Properties provided by the Company or any Mortgage Loan
Seller to such Underwriter; and provided, further, that any such Term Sheets or
Computational Materials were prepared by such Underwriter and distributed by
such Underwriter.
It is hereby acknowledged that (i) the statements set forth in the first,
second, third and fifth sentences of the last paragraph on the cover of the
Prospectus Supplement, (ii) the statements in the second paragraph, the third
paragraph and the first sentence of the seventh paragraph under the heading
"Method of Distribution" in the Prospectus Supplement and (iii) the statements
in any Computational Materials and Term Sheets delivered by the Underwriters to
the Company for filing with the Commission pursuant to this Agreement and the
No-Action Letters, constitute the only written information furnished to the
Company by the Underwriters expressly for use in the Registration Statement (or
any amendment thereto) or in the Basic Prospectus, the Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action and, to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from the
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the 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 agreed to the retention of such
counsel, or (ii) the indemnifying party shall not have assumed the defense of
such action, with counsel satisfactory to the indemnified party, within a
reasonable period following the indemnifying party's receiving notice of such
action, or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In no event shall
the indemnifying party or parties be liable for fees and expenses of more than
one counsel (or, in the event the Company is the indemnifying party, one counsel
for each Underwriter) (in addition to any local counsel) separate from its or
their own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general
-23-
allegations or circumstances. Unless it shall assume the defense of any
proceeding, an 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 shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. If an 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 that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, without the consent
of the indemnified party.
(d) The indemnity agreements contained in this Section 8 shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by the Company, the Underwriters, any of
their respective directors or officers, or any person controlling the Company or
the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
(e) Each Underwriter, severally but not jointly, will indemnify and
hold harmless any other Underwriter and each person, if any, who controls such
Underwriter within the meaning of either the 1933 Act or the 1934 Act
(collectively, the "Non-Indemnifying Underwriter") from and against any and all
loss, liability, claim, damage and expense whatsoever, as incurred that arise
out of or are based upon (i) any untrue statement of material fact contained in
any Computational Materials or Term Sheets (other than the Computational
Materials and Term Sheets attached hereto as Exhibit A and Exhibit B) prepared
by such indemnifying Underwriter or any member of its selling group, in
connection with the Underwritten Certificates or in any revision or amendment
thereof or supplement thereto or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision of
Section 4(b) hereof, and agrees to reimburse each such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, liability,
claim, damage or expense; provided, that the indemnity provided by this Section
8(e) shall not apply to the extent that such indemnifying Underwriter is
entitled under any Mortgage Loan Purchase Agreement to seek indemnity for such
loss, liability, claim, damage or expense from a Mortgage Loan Seller affiliated
with the Underwriter seeking indemnification. This indemnity agreement will be
in addition to any liability that any Underwriter may otherwise have.
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, or if such indemnification provided for
in Section 8 hereof is insufficient in respect of any losses, liabilities,
claims or damages referred to therein, the Company and MLMLI, jointly and
severally, and the Underwriters, severally, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the Underwriters, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and each Underwriter on
-24-
the other from the offering of the Underwritten Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters 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 Underwriters 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 Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation; and
provided, further, that in no event shall any Underwriter be obligated to
contribute more than its share of the underwriting discounts and commissions
pertaining to the Underwritten Certificates less any damages otherwise paid by
such Underwriter with respect to such loss, liability, claim, damage or expense.
It is hereby acknowledged that the respective Underwriters' obligations under
this Section 9 shall be several and not joint. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's
directors, shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company.
(b) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (a) above. The amount paid or payable by an indemnified party as a
result of the losses, liabilities, claims or damages referred to in Section 8 or
this Section 9 shall be deemed to include any legal fees and disbursements or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim except where the indemnified party is
required to bear such expenses, which expenses the indemnifying party shall pay
as and when incurred, at the request of the indemnified party, to the extent
that it is reasonable to believe that the indemnifying party 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. The
remedies provided for in Section 8 and this Section 9 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the Underwriters,
any of their respective directors or officers, or any person controlling the
Company or the Underwriters, and (iii) acceptance of and payment for any of the
Underwritten Certificates.
-25-
10. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Underwritten Certificates agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally (in the respective proportions which the portion of the Underwritten
Certificates set forth opposite their names in Schedule II hereto bears to the
aggregate amount of Underwritten Certificates set forth opposite the names of
all the remaining Underwriters) to purchase the Underwritten Certificates that
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the amount of Underwritten
Certificates that the defaulting Underwriter or Underwriters agreed but failed
to purchase shall exceed 10% of the aggregate principal amount of Underwritten
Certificates set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Underwritten Certificates, and if such nondefaulting
Underwriters do not purchase all of the Underwritten Certificates, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company, except as provided in Section 11 or Section 12. In the event of a
default by any Underwriter as set forth in this Section 10, the Closing Date for
the Underwritten Certificates shall be postponed for such period, not exceeding
ten business days, as you shall determine in order that the required changes in
the Registration Statement and the Prospectus Supplement or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or by or on behalf of the
Company, or by or on behalf of any of the controlling persons and officers and
directors referred to in Sections 8 and 9, and shall survive delivery of the
Underwritten Certificates to the Underwriters.
12. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date (i) if there has occurred,
since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or of any
Mortgage Loan Seller, whether or not arising in the ordinary course of business,
or (ii) if there has occurred any outbreak of hostilities or escalation thereof
or other calamity or crisis, the effect of which is such as to make it, in the
reasonable judgment of any Underwriter, impracticable or inadvisable to market
the Underwritten Certificates or to enforce contracts for the sale of the
Underwritten Certificates, or (iii) if trading in any securities of the Company
or of any Mortgage Loan Seller has been suspended or limited by the Commission,
the New York Stock Exchange or the Nasdaq National Market, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or on
the Nasdaq National Market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have
-26-
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in securities
settlement or clearance services in the United States or with respect to
Clearstream or Euroclear systems in Europe, or (iv) if a banking moratorium has
been declared by either federal or New York authorities
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
as provided in Section 11 or Section 12 (c).
(c) The provisions of Section 5(e) regarding the payment of costs and
expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement, whether such termination is pursuant to this
Section 12 or otherwise.
13. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notice to Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated shall be directed to it at Xxxxx Xxxxx, Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Real Estate Investment Banking;
notice to [Underwriter 2] shall be directed to it at [contact information];
notice to [Underwriter 3] shall be directed to it at [contact information];
notice to the Company shall be directed to it at 4 World Financial Center, 10th
Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President; and
notice to Xxxxxxx Xxxxx Mortgage Lending, Inc. shall be directed to it at 4
World Financial Center, 10th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
or, in any case, such other address as may hereafter be furnished by the
Underwriters, MLMLI or the Company to the other such parties in writing.
14. PARTIES. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters, the Company and MLMLI and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and MLMLI and their respective successors and
the controlling persons and officers and directors referred to in Sections 8 and
9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
MLMLI and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Underwritten Certificates
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in said State. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument.
-27-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, MLMLI and the several Underwriters.
Very truly yours,
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: ________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By: ________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX INCORPORATED
By: _______________________
Name:
Title:
[UNDERWRITER 2]
By: _______________________
Name:
Title:
[UNDERWRITER 3]
By: _______________________
Name:
Title:
By: _______________________
Name:
Title:
SCHEDULE I
UNDERWRITING AGREEMENT DATED ________, 200_:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-________ filed by the Company on Form S-3 and
declared effective on _______, 200_. The term "Basic Prospectus" refers to the
form of prospectus in the Registration Statement or such later form as most
recently filed by the Company pursuant to Rule 424(b) under the Securities Act
of 1933, as amended. The term "Prospectus Supplement" refers to the supplement
dated ______, 200_, to the Basic Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement (the
"Underwritten Certificates").
MORTGAGE POOL:
One hundred and one commercial and multifamily mortgage loans, having an
aggregate principal balance, after giving effect to payments of principal due on
or before ______, 200_, and with respect to one Mortgage Loan, _________, 200_
(the "Cut-Off Date") of $__________, as described in the Prospectus Supplement,
and otherwise complying in all material respects with the description thereof
set forth in the Prospectus Supplement.
TITLE, PURCHASE PRICE AND DESCRIPTION OF UNDERWRITTEN CERTIFICATES:
Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series _______, Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class
F and Class X.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CLOSING DATE
AGGREGATE
CERTIFICATE PURCHASE PRICE
DESIGNATION PRINCIPAL BALANCE PASS -THROUGH RATE XXXXX'X/S&P RATING(1) PERCENTAGE(2)
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class A-1 $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class A-2 $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class B $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class C $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class D $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class E $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class F $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Class X $ % %
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
--------------------
(1) By each of Xxxxx'x Rating Services, Inc. and Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
(2) There shall be added to the purchase price for each Class of
Underwritten Certificates accrued interest, if any, at the initial
Pass-Through Rate for such Class from _____, 200_, up to, but not
including, the Closing Date.
Credit Support and Other Terms and Conditions of the Underwritten
Certificates: As described in the Prospectus Supplement.
Closing Date and Location: 10:00 a.m. (New York City time) on _______,
200_, at the offices of ______________, New York, New York; except that
delivery of the Underwritten Certificates shall be made through the
facilities of The Depository Trust Company.
Initial Public Offering Price: The Underwritten Certificates will be offered to
the public in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.
-2-
SCHEDULE II
Underwriting Agreement dated _______, 200_
Approximate Aggregate Principal Amount of Certificates to Underwriters Class to
be Purchased by Xxxxxxx Xxxxx
--------------------------------------- ----------------------------------------
Class A-1 $
--------------------------------------- ----------------------------------------
Class A-2 $
--------------------------------------- ----------------------------------------
Class B $
--------------------------------------- ----------------------------------------
Class C $
--------------------------------------- ----------------------------------------
Class D $
--------------------------------------- ----------------------------------------
Class E $
--------------------------------------- ----------------------------------------
Class F $
--------------------------------------- ----------------------------------------
Class X
--------------------------------------- ----------------------------------------
[Underwriter 2]
--------------------------------------- ----------------------------------------
Class A-1 $
--------------------------------------- ----------------------------------------
Class A-2 $
--------------------------------------- ----------------------------------------
Class B $
--------------------------------------- ----------------------------------------
Class C $
--------------------------------------- ----------------------------------------
Class D $
--------------------------------------- ----------------------------------------
Class E $
--------------------------------------- ----------------------------------------
Class F $
--------------------------------------- ----------------------------------------
Class X
--------------------------------------- ----------------------------------------
[Underwriter 3]
--------------------------------------- ----------------------------------------
Class A-1 $
--------------------------------------- ----------------------------------------
Class A-2 $
--------------------------------------- ----------------------------------------
Class B $
--------------------------------------- ----------------------------------------
Class C $
--------------------------------------- ----------------------------------------
Class D $
--------------------------------------- ----------------------------------------
Class E $
--------------------------------------- ----------------------------------------
Class F $
--------------------------------------- ----------------------------------------
Class X
--------------------------------------- ----------------------------------------
