EXHIBIT 1.1
XXXXXX FINANCIAL COMMERCIAL MORTGAGE ASSET CORP.
MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 199_-_
UNDERWRITING AGREEMENT
as of _________, 199_
Underwriter
[address]
Ladies and Gentlemen:
Xxxxxx Financial Commercial Mortgage Asset Corp., a Delaware
corporation (the "Depositor"), proposes to sell to you (the "Underwriter") the
Mortgage Pass-Through Certificates identified on Schedule I hereto (the
"Certificates") pursuant to this Underwriting Agreement, dated as of ________,
199_ (this "Agreement"), between the Depositor and the Underwriter. The
Certificates will evidence beneficial ownership interests in a trust fund (the
"Trust Fund") to be formed by the Depositor and consisting primarily of a pool
(the "Mortgage Pool") of multifamily and commercial mortgage loans (the
"Mortgage Loans").
The Mortgage Loans will be acquired by the Depositor from ___________
(the "Mortgage Loan Seller") pursuant to the mortgage loan purchase agreement,
dated as of _____________, 199_ (the "Mortgage Loan Purchase Agreement"),
between the Depositor and the Mortgage Loan Seller. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Mortgage Loan
Purchase Agreement.
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 033-______) on Form S-3 for
the registration of the Certificates under the Securities Act of 1933, as
amended (the "1933 Act"), which registration statement has become effective and
copies of which have heretofore been delivered to the Underwriter. The
Depositor proposes to file with the Commission pursuant to Rule 424(b) under
the 1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Certificates and the plan of
distribution thereof. Such registration statement, including the exhibits
thereto, as amended at the date hereof, is hereinafter called the "Registration
Statement"; the prospectus included in the Registration Statement, at the time
the Registration Statement, as amended, became effective, or as subsequently
filed with the Commission pursuant to Rule 424(b) under the 1933 Act, is
hereinafter called the "Basic Prospectus"; such form of supplement to the form
of prospectus relating to the Certificates, in the form in which it shall be
first filed with the Commission pursuant to Rule 424 (including the Basic
Prospectus as so supplemented) is hereinafter called the "Prospectus
Supplement"; and the Basic Prospectus and the Prospectus Supplement, together,
are hereinafter called the "Prospectus". Any preliminary form of the Prospectus
that has heretofore been filed pursuant to Rule 424(b) is hereinafter called a
"Preliminary Prospectus".
SECTION 1. Representations and Warranties.
(a) The Depositor represents and warrants to the Underwriter as
follows:
(i) The Registration Statement has become effective, and the
Registration Statement as of the effective date thereof (the "Effective Date"),
and the Prospectus, as of the date of the Prospectus Supplement, complied in
all material respects with the applicable requirements of the 1933 Act and the
rules and regulations thereunder (the "1933 Act Regulations"); and the
information in the Registration Statement, as of the Effective Date, did not
contain any untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and the information in the Prospectus, as of the date of
the Prospectus Supplement, did not, and as of the Closing Date (as hereinafter
defined) will not, contain an untrue statement of a material fact and did not
and will not omit to state a material fact necessary in order to make the
information therein, in the light of the circumstances under which they were
made, not misleading, provided, however, that the Depositor makes no
representations, warranties or agreements as to (A) the information contained
in the Prospectus or any revision or amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Depositor by the Underwriter specifically for use in connection with the
preparation of the Prospectus or any revision or amendment thereof or
supplement thereto (the "Underwriter Information"), or (B) any information
contained in or omitted from any Computational Materials or ABS Term Sheets
(each as hereinafter defined) required to be provided by the Underwriter to the
Depositor pursuant to Section 4, and provided, further, that the Depositor
makes no representations or warranties as to any information contained in or
omitted from the portions of the Prospectus Supplement under the headings
"________________________________", or contained in or omitted from Appendix
__, Appendix __, Appendix ___ or Appendix __ to the Prospectus Supplement (the
"Mortgage Loan Seller Information") and provided, further, that the Depositor
makes no representations or warranties regarding untrue statements or omissions
in the portions of the Prospectus Supplement under the headings "___________"
and "_______________" that arise out of or are based upon untrue statements or
omissions in the Mortgage Loan Seller Information.
(ii) The Depositor 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 and operate its
properties and to conduct its business as now conducted
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by it, and to enter into and perform its obligations under this Agreement and
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of ____________, 199_, among the Depositor, _______________, as master
servicer, _________, as special servicer and __________________, as trustee.
(iii) The execution, delivery and performance of this Agreement
and the Pooling and Servicing Agreement and the consummation of the
transactions contemplated herein and therein and compliance by the Depositor
with its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and will not contravene any provision of applicable
law or the certificate of incorporation or by-laws of the Depositor or conflict
with or constitute a breach of or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Depositor pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Depositor is a party or by which
it may be bound or to which any of the property or assets of the Depositor is
subject.
(iv) The Certificates have been duly authorized for issuance and
sale (or will have been so authorized prior to the issuance thereof) pursuant
to this Agreement and the Pooling and Servicing Agreement. When issued,
authenticated and delivered pursuant to the provisions of this Agreement and of
the Pooling and Servicing Agreement against payment of the consideration
therefor in accordance with this Agreement, the Certificates will be duly and
validly issued and outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement, except as enforcement thereof may be limited
by bankruptcy, insolvency or other laws relating to or affecting enforcement of
creditors' rights or by general equity principles. The Certificates and the
Pooling and Servicing Agreement conform in all material respects to all
statements relating thereto contained in the Prospects.
(v) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Certificates hereunder, 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 Certificates by the Underwriter and any recordation
of the respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been completed.
(vi) This Agreement has been, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed and
delivered by the Depositor. This Agreement constitutes, and as of the Closing
Date the Pooling and Servicing Agreement will constitute, a legal, valid and
binding agreement enforceable against the Depositor in accordance with its
terms, except as such enforceability may be limited by (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in equity
or at law, and (C) public policy considerations underlying the securities laws,
to the extent that such public policy considerations limit the enforceability
of
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the provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
(vii) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause
to be conveyed to the Trustee, good title to the Mortgage Loans being
transferred to the Trustee pursuant to the Pooling and Servicing Agreement,
free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively "Liens") granted by or imposed
upon the Depositor, (B) will not have assigned to any person any of its right,
title or interest in the Mortgage Loans or in the Pooling and Servicing
Agreement or the Certificates, and (C) will have the power and authority to
transfer or cause to be transferred the Mortgage Loans to the Trustee and to
sell the Certificates to the Underwriter. Upon execution and delivery of the
Pooling and Servicing Agreement by the Trustee, the Trustee will have acquired
ownership of all of the Depositor's right, title and interest in and to the
Mortgage Loans except to the extent disclosed in the Prospectus, and upon
delivery to the Underwriter of the Certificates pursuant hereto, the
Underwriter will have good title to the Certificates purchased by the
Underwriter, in each case free of Liens.
(viii) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause the
Depositor or the Trust Fund to be, subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriter pursuant to this Agreement as a sale of the
interest in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Depositor upon the sale of the Certificates to the Underwriter
will constitute reasonably equivalent value and fair consideration for the
Certificates. The Depositor will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Certificates to the
Underwriter. The Depositor is not selling the Certificates to the Underwriter
with any intent to hinder, delay or defraud any of the creditors of the
Depositor.
(x) At the Closing Date, the respective classes of Certificates
shall have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations identified
in Schedule I hereto (the "Rating Agencies").
(xi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other than
income taxes) have been paid or will be paid at or prior to the Closing Date.
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(xii) None of the Depositor or any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(b) The Underwriter represents and warrants to the Depositor that, as
of the date hereof and as of the Closing Date, the Underwriter has complied
with all of its obligations hereunder.
SECTION 2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance
upon the representations and warranties herein contained, the Depositor shall
sell to the Underwriter, and the Underwriter shall purchase from the Depositor,
at the related purchase price set forth on Schedule I hereto, Certificates of
each class thereof having an actual or notional amount as set forth on Schedule
I hereto. There will be added to the purchase price of the Certificates an
amount equal to interest accrued thereon pursuant to the terms thereof from the
Cut-off Date to but excluding the Closing Date.
SECTION 3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 a.m. New York City time on _________, 199_,
which date and time may be postponed by agreement between the Underwriter and
the Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor in immediately available Federal funds
wired to such bank as may be designated by the Depositor, against delivery of
the Certificates. Delivery of the Certificates will be made in book-entry form
through the facilities of The Depository Trust Company ("DTC"). Each class of
Certificates will be represented by one or more definitive global Certificates
to be deposited by or on behalf of the Depositor with DTC. The Certificates
will be made available for examination by the Underwriter not later than 10:00
a.m. New York City time on the last business day prior to the Closing Date. The
closing of the transactions contemplated hereby shall be made at the offices of
___________________________, or at such other place as shall be agreed upon by
the Underwriter and the Depositor.
SECTION 4. Offering by Underwriter.
(a) The Underwriter shall provide written information to the Depositor
expressly for use in the Preliminary Prospectus and the Prospectus (the
"Underwriter Information").
(b) It is understood that the Underwriter proposes to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon a Policy Statement 105, has not and will
not file an offering statement pursuant to Section 352-c of the General
Business Law of the State of New York with respect to the Certificates. The
Underwriter therefore agrees that sales of the Certificates made by the
Underwriter in and from
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the State of New York will be made only to institutional investors within the
meaning of Policy Statement 105.
(c) In connection with the offering of the Certificates, the
Underwriter may prepare and provide to prospective investors (i) computational
materials ("Computational Materials") as defined in the No-Action Letter of May
20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I,
Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation, as
made applicable to other issuers and underwriters by the Commission in response
to the request of the Public Securities Association dated May 24, 1994, as well
as the PSA Letter referred to below and (ii) ABS term sheets ("ABS Term
Sheets"), each as defined in the No-Action Letter of February 17, 1995 issued
by the Commission to the Public Securities Association (the "PSA Letter"),
subject to the following conditions:
(i) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the No-Action
Letters shall bear a legend substantially in the form attached hereto as
Exhibit A. The Depositor shall have the right to require additional specific
legends or notations to appear on any Computational Materials or ABS Term
Sheets, the right to require changes regarding the use of terminology and the
right to determine the types of information appearing therein. Notwithstanding
the foregoing, this subsection (i) will be satisfied if all Computational
Materials and ABS Term Sheets referred to herein bear a legend in a form
previously approved in writing by the Depositor.
(ii) The Underwriter shall provide the Depositor with
representative forms of all Computational Materials and ABS Term Sheets prior
to their first use, to the extent such forms have not previously been approved
by the Depositor for use by the Underwriter. The Underwriter shall provide to
the Depositor, for filing on Form 8-K as provided in Section 5(j), copies (in
such format as required by the Depositor) of all Computational Materials and
ABS Term Sheets that are required to be filed with the Commission pursuant to
the No-Action Letters. The Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be filed
if filing in such format is permitted by the No-Action Letters. All
Computational Materials and ABS Term Sheets described in this subsection (ii)
must be provided to the Depositor not later than 10:00 a.m. New York City time
one business day before filing thereof is required pursuant to the terms of
this Agreement and in accordance with the No-Action Letters. The Underwriter
shall not provide to any investor or prospective investor in the Certificates
any Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials or ABS Term Sheets are required to be provided to the
Depositor pursuant to this subsection (ii) (other than copies of Computational
Materials or ABS Term Sheets previously submitted to the Depositor in
accordance with this subsection (ii) for filing pursuant to Section 5(j),
unless such Computational Materials or ABS Term Sheets are preceded or
accompanied by the delivery of a Prospectus to such investor or prospective
investor.
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(iii) All information included in the Computational Materials and
ABS Term Sheets shall be generated based on substantially the same methodology
and assumptions that are used to generate the information in the Prospectus
Supplement as set forth therein; provided that the Computational Materials and
ABS Term Sheets may include information based on alternative methodologies or
assumptions if specified therein. If any Computational Materials or ABS Term
Sheets that are required to be filed were based on assumptions with respect to
the Mortgage Pool that differ from the final mortgage pool information
reflected in the Mortgage Loan Seller Information in any material respect or on
Certificate structuring terms that were revised in any material respect prior
to the printing of the Prospectus, the Underwriter shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be, based on the
Mortgage Loan Seller Information and structuring assumptions used in the
Prospectus, circulate such revised Computational Materials and ABS Term Sheets
to all recipients of the preliminary versions thereof that indicated orally to
the Underwriter they would purchase all or any portion of the Certificates, and
include such revised Computational Materials and ABS Term Sheets (marked, "as
revised") in the materials delivered to the Depositor pursuant to subsection
(ii) above.
(iv) The Depositor shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to contain
any material error or omission, provided that, at the request of the
Underwriter, the Depositor will file Computational Materials or ABS Term Sheets
that contain a material error or omission if clearly marked "superseded by
materials dated _______________________" and accompanied by corrected
Computational Materials or ABS Term Sheets that are marked, "material
previously dated _________, as corrected." If, within the period during which
the Prospectus relating to the Certificates is required to be delivered under
the 1933 Act, any Computational Materials or ABS Term Sheets are determined, in
the reasonable judgment of the Depositor or the Underwriter, to contain a
material error or omission, the Underwriter shall prepare a corrected version
of such Computational Materials or ABS Term Sheets, shall circulate such
corrected Computational Materials or ABS Term Sheets to all recipients of the
prior versions thereof that either indicated orally to the Underwriter they
would purchase all or any portion of the Certificates, or actually purchased
all or any portion thereof, and shall deliver copies of such corrected
Computational Materials or ABS Term Sheets (marked, "as corrected") to the
Depositor for filing with the Commission in a subsequent Form 8-K submission
(subject to the Depositor's obtaining an accountant's comfort letter in respect
of such corrected Computational Materials and ABS Term Sheets, which the
parties acknowledge shall be at the expense of the Mortgage Loan Seller. As of
the date that the Underwriter disseminates any Computational Materials or ABS
Term Sheets, the Underwriter shall not have any knowledge or reason to believe
that such Computational Materials or ABS Term Sheets contained any material
error or omission and will promptly notify the Depositor of any such material
error or omission of which the Underwriter becomes aware.
(v) The Underwriter shall be deemed to have represented, as of
the Closing Date, that, except for Computational Materials and ABS Term Sheets
provided to the Depositor pursuant to subsection (ii) above, the Underwriter
did not provide any prospective investors
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with any information in written or electronic form in connection with the
offering of the Certificates that is required to be filed with the Commission
in accordance with the No-Action Letters, and the Underwriter shall provide the
Depositor with a certification to that effect on the Closing Date.
(vi) In the event of any delay in the delivery by the Underwriter
to the Depositor of all Computational Materials and ABS Term Sheets required to
be delivered in accordance with subsection (ii) above, or in the delivery of
the accountant's comfort letter in respect thereof pursuant to Section 5(j),
the Depositor 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 Depositor
to comply with its agreement set forth in Section 5(j) to file the
Computational Materials and ABS Term Sheets by the time specified therein.
(d) The Underwriter further represents and warrants that, if and to
the extent it has provided any prospective investors with any Computational
Materials or ABS Terms Sheets prior to the date hereof in connection with the
offering of the Certificates, all of the conditions set forth in clause (c)
above have been satisfied with respect thereto.
SECTION 5. Covenants of the Depositor.
The Depositor covenants with the Underwriter as follows:
(a) The Depositor will give the Underwriter notice of its intention to
file or prepare (i) any amendment to the Registration Statement at any time
prior to the Closing Date or (ii) any amendment or supplement to the Prospectus
(including any revised prospectus that the Depositor proposes for use by the
Underwriter in connection with the offering of the Certificates and that
differs from the prospectus on file at the Commission at the time the
Registration Statement became effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations) at
any time during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act and the Depositor, will furnish the
Underwriter with copies of any such amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such amendment or supplement or use any such prospectus to which the
Underwriter shall reasonably object.
(b) The Depositor will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
(c) The Depositor will deliver to the Underwriter a copy of the
Registration Statement as originally filed and of each amendment thereto prior
to the date hereof (including exhibits filed therewith or incorporated by
reference therein).
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(d) The Depositor will furnish to the Underwriter, from time to time
during the period when a prospectus relating to the Certificates is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
amended or supplemented) as the Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the respective
applicable rules and regulations of the Commission thereunder.
(e) If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, the Depositor will forthwith amend or
supplement the Prospectus so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a purchaser,
not misleading, and the Depositor will furnish to the Underwriter a reasonable
number of copies of such amendment or supplement.
(f) The Depositor will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Underwriter may reasonably
designate and will maintain such qualification in effect so long as required
for the initial distribution of Certificates; provided, however, that the
Depositor shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified.
(g) The Depositor will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus under "Use
of Proceeds".
(h) If the transactions contemplated by this Agreement are
consummated, the Depositor will pay or cause to be paid all expenses incident
to the performance of the obligations of the Depositor under this Agreement.
Except as herein provided, the Underwriter shall be responsible for the payment
of all costs and expenses incurred by it, including, without limitation, (i)
the fees and disbursements of counsel of the Underwriter and (ii) such
additional costs arising out of any Computational Materials and ABS Term Sheets
prepared and/or distributed by the Underwriter, in connection with the purchase
and sale of the Certificates.
(i) If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the 1933 Act,
the Depositor receives notice that a stop order suspending the effectiveness of
the Registration Statement or preventing the offer and sale of the Certificates
is in effect, the Depositor will immediately advise the Underwriter of the
issuance of such stop order.
(j) The Depositor will file with the Commission within fifteen days of
the issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent
that such information is not set forth in the
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Prospectus. The Depositor will also file with the Commission a report on Form
8-K setting forth all Computational Materials and ABS Term Sheets (as such
terms are defined herein) provided to the Depositor by the 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 ABS Term Sheets by the Depositor, the
Underwriter must comply with its obligations pursuant to Section 4 and the
Depositor must receive a letter from ____________________, certified public
accountants, satisfactory in form and substance to the Depositor, to the effect
that such accountants have performed certain specified procedures, all of which
have been agreed to by the Depositor, as a result of which they have determined
that the information included in the Computational Materials and ABS Term
Sheets (if any), provided by the Underwriter to the Depositor for filing on
Form 8-K pursuant to Section 4 and this subsection (j), and that the
accountants have examined in accordance with such agreed upon procedures, is
accurate except as to such matters that are not deemed by the Depositor to be
material. The Depositor shall file any corrected Computational Materials or ABS
Term Sheets described in Section 4(c)(iv) as soon as practicable following
receipt thereof.
SECTION 6. Conditions of Underwriter's Obligations.
The Underwriter's obligation to purchase the Certificates allocated to
it as set forth on Schedule I hereto shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Depositor contained herein as of the date hereof and as of the Closing Date, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Depositor's knowledge, threatened by the Commission and the
Prospectus Supplement shall have been filed or transmitted for filing by means
reasonably calculated to result in a filing with the Commission pursuant to
Rule 424(b) under the Act.
(b) On the Closing Date, the Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to
the Depositor, in form and substance satisfactory to the Underwriter,
substantially to the effect that:
(A) The Depositor is a corporation in good standing under
the laws of the State of Delaware.
(B) The Depositor has corporate power and authority to enter
into and perform its obligations under this Agreement and the Pooling
and Servicing Agreement.
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(C) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the
Depositor. Upon due authorization, execution and delivery by the other
parties thereto, the Pooling and Servicing Agreement will constitute a
valid, legal and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, except as
enforceability may be limited by (1) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors generally
and (2) general principles of equity, whether enforcement is sought in
a proceeding in equity or at law.
(D) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this Agreement,
will be entitled to the benefits of the Pooling and Servicing
Agreement.
(E) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and not withdrawn, and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(F) At the time it became effective, the Registration
Statement (other than any financial or statistical information
included or incorporated by reference therein, as to which no opinion
need be rendered) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(G) To such counsel's knowledge and information, there are
no material contracts, indentures, or other documents of the Depositor
required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto.
(H) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and
the issuance and sale of the Certificates in the manner contemplated
by the Prospectus will not cause the Depositor or the Trust Fund to be
subject to registration or regulation as an "investment company" under
the Investment Company Act of 1940, as amended.
(I) No consent, approval, authorization, or order of any
State of New York or federal court or governmental agency or body is
required for the consummation by the Depositor of the transactions
contemplated herein, except (1) such as have been obtained, (2) such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and sale of the Certificates by the
Underwriter, as to which no opinion need be expressed and (3) any
recordation of the assignments of the
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Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement that has not yet been completed.
(J) Neither the sale of the Certificates to the Underwriter
pursuant to this Agreement, nor the consummation by the Depositor of
any other of the transactions contemplated by, or the fulfillment by
the Depositor of the terms of, this Agreement or the Pooling and
Servicing Agreement, will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or an
event which with the passing of time or notification or both, would
constitute a default) under, the certificate of incorporation or
by-laws of the Depositor or, to the knowledge of such counsel, any
material indenture or other material agreement or material instrument
to which the Depositor is a party or by which it is bound, or any
State of New York or federal statute or regulation applicable to the
Depositor or, to the knowledge of such counsel, any order of any New
York or federal court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriter, reasonably acceptable to the Underwriter.
(iii) In giving their opinions required by the foregoing
subsections (i) and (ii) of this Section, counsel to the Depositor and
the Underwriter, respectively, shall in each case additionally state
that nothing has come to such counsel's attention that would lead it
to believe that the Prospectus (other than any financial statements
and supporting schedules and statistical and/or accounting information
included therein, as to which no opinion need be rendered), as of the
date thereof or as of the Closing Date, contained an untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. Such statement shall be based
upon conferences and telephone conversations with representatives of
the parties hereto, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer and the Trustee and such opinion may be qualified
that, with limited exception, such counsel will not have reviewed any
loan documents.
Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or
authorized representatives of, the parties to this Agreement and the
Pooling and Servicing Agreement and on certificates furnished by
public officials. Such opinion(s) may assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the party on behalf of which
such opinion is being rendered. Such opinion(s) may be qualified as an
opinion only on the General Corporation Law of the State of Delaware,
the laws of the State of New York and the federal law of the United
States.
(c) On the Closing Date, the Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA counsel to
the Depositor (i) regarding the
12
qualification of each of [REMIC I, REMIC II and REMIC III] as a real estate
mortgage investment conduit within the meaning of Sections 860A through 860G of
the Internal Revenue Code of 1986 and (ii) to the effect that the statements in
the Basic Prospectus and the Prospectus Supplement under the headings "Certain
Federal Income Tax Consequences" and "ERISA Considerations", to the extent that
they constitute matters of State of New York or federal law or legal
conclusions with respect thereto, while not purporting to discuss all possible
consequences of investment in the Certificates, are correct in all material
respects with respect to those consequences or matters that are discussed
therein. Such opinion(s) may express its (their) reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Such opinion(s) may be qualified as an opinion only
on the federal tax and ERISA law of the United States.
(d) The Depositor shall have delivered to the Underwriter a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of the Depositor to the effect that the signer of such
certificate has examined, or has relied upon an examination conducted by
appropriate persons authorized by him of, this Agreement, the Prospectus, the
Pooling and Servicing Agreement and various other closing documents, and that,
to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of the Depositor in this
Agreement and the Pooling and Servicing Agreement are true and correct
in all material respects;
(ii) the Depositor 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;
(iii) since ___________, 199_, there has been no material adverse
change in the financial condition of the Depositor; and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) The Depositor and the Underwriter shall have received from
_______________, certified public accountants, a letter dated the Closing Date,
in form and substance satisfactory to the Underwriter, stating in effect that:
(i) they have performed certain specified procedures as a result
of which they have determined that certain information of an accounting,
financial or statistical nature set
13
forth in the Prospectus Supplement agrees with the data sheet or computer tape
prepared by or on behalf of the Mortgage Loan Seller, unless otherwise noted in
such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) 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, unless otherwise noted in such letter.
(f) The Underwriter shall have delivered the certification specified
in Section 4(c)(v) and received the accountants' letters specified in Section
5(j).
(g) The Underwriter shall have received, with respect to each of the
Master Servicer, the Special Servicer and the Trustee, a favorable opinion of
counsel, dated the Closing Date, addressing the valid existence of such party
under the laws of the jurisdiction of its organization, the due authorization,
execution and delivery of the Pooling and Servicing Agreement by such party
and, subject to the same limitations as set forth in Section 6(b)(i)(C), the
enforceability of the Pooling and Servicing Agreement against such party. Such
opinion may express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished by,
officers and/or authorized representatives of parties to, the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered.
(h) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Depositor which the Underwriter concludes, in the
reasonable judgment of the Underwriter after consultation with the Depositor,
materially impairs the investment quality of the Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the delivery
of the Certificates as contemplated by the Prospectus.
(i) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been rescinded.
SECTION 7. Indemnification.
(a) The Depositor shall indemnify and hold harmless the Underwriter,
its directors and officers and each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the 1933 Act or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), from
and against any and all expenses, losses, claims, damages and other liabilities
(including without limitation the reasonable costs of investigation and legal
defense) (the "Liabilities") caused by any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they
14
were made, not misleading; provided that, insofar as the Liabilities are caused
by any such untrue statement or omission or alleged untrue statement or
omission with respect to any information in the Prospectus as to which the
Underwriter has agreed to indemnify the Depositor pursuant to Section 7(b), the
Depositor shall have no obligation to so indemnify and hold harmless; and
provided, further, that the Depositor shall have no obligation to so indemnify
and hold harmless to the extent that the Liabilities arise out of or are based
upon an untrue statement or omission or an alleged untrue statement or omission
with respect to the Mortgage Loan Seller Information or any other factual
information contained in the Prospectus regarding the Mortgage Loans.
(b) The Underwriter shall indemnify and hold harmless the Depositor,
its directors and each person, if any, who controls the Depositor within the
meaning of either Section 15 or Section 20 of the 1933 Act or Section 20 of the
1934 Act against any and all Liabilities as incurred, but only with respect to
(i) untrue statements or alleged untrue statements, or omissions or alleged
omissions to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, in the
Underwriter Information and (ii) untrue statements or alleged untrue statements
in the Computational Materials or ABS Term Sheets delivered to purchasers of
the Certificates by the Underwriter, to the extent that such Computation
Materials and ABS Terms Sheets were prepared by the Underwriter and
incorporated by reference into the Registration Statement or the Prospectus as
a result of any filing pursuant to Section 5(j), except to the extent that such
losses, claims, damages or other liabilities arise from factual errors in the
Mortgage Loan Seller Information and/or the Master Tape.
(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 Agreement. If any action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party may participate at its own
expense in the defense of any such action. To the extent that it may elect by
written notice delivered to the indemnified parry promptly after receiving the
aforesaid notice from the indemnified party, the indemnifying party may elect
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 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 parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from 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
allegations or circumstances. Unless it shall assume the defense of any
15
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent. However, 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) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party under subsection (a) or (b) on grounds of
public policy or otherwise, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Depositor on the one hand and the Underwriter on the
other from the offer and sale of the Certificates pursuant hereto or (ii) if
the allocation provided by clause (i) above is nor 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 Depositor on
the one hand and of the Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or other
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Depositor on the one hand, and the
Underwriter on the other, in connection with the offering of the Certificates
shall be deemed to be in the same respective proportions that the total
proceeds from the sale of the Certificates (before deducting expenses) received
by the Depositor and the total underwriting discounts and commissions received
by the Underwriter in connection with the offering of the Certificates, bear to
the aggregate offering price of the Certificates. The relative fault of the
Depositor on the one hand and of the Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Depositor or by
the Underwriter, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) 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 (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or other liabilities referred to in this
Section 7 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. 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. Notwithstanding the provisions of this subsection (e),
16
the Underwriter shall not be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
the Underwriter in connection with the offering of the Certificates exceeds the
amount of damages that the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 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.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the
Depositor, the Underwriter, any of their respective directors or officers, or
any person controlling the Depositor or the Underwriter, and (iii) acceptance
of and payment for any of the Certificates.
SECTION 8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Underwriter or any controlling
person in respect of the Underwriter, and shall survive delivery of the
Certificates to the Underwriter.
SECTION 9. Termination of Agreement.
(a) The Underwriter may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to the Closing
Date if the sale of the Certificates provided for herein is not consummated
because of any failure or refusal on the part of the Depositor to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Depositor shall be unable to perform its obligations under this
Agreement.
(b) The Underwriter may terminate its obligations under this Agreement
in the absolute discretion of the Underwriter, by notice given to the
Depositor, if (A) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Depositor shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or State of New York authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Underwriter, is material and adverse and (B) in the case of any of the
events specified in clauses (A)(i) through (iv) above, such event singly or
together with any other such event,
17
makes it, in the judgment of the Underwriter, impracticable to market the
Certificates on the terms and in the manner contemplated in the Prospectus.
(c) If the Underwriter terminates its obligations under this Agreement
in accordance with Section 9(a), the Depositor shall reimburse the Underwriter
for all reasonable out-of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by the
Underwriter in connection with the proposed purchase and sale of the
Certificates.
SECTION 10. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to the
Underwriter shall be directed to __________ ____________________, Attention:
______________; to the Depositor shall be directed to
______________________________________, Attention: ________________, with a
copy to the treasurer and the general counsel; and as to any party, to such
other address as may hereafter be furnished by such party to the others in
writing.
SECTION 11. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriter and the Depositor and
their respective successors and the controlling persons and officers and
directors referred to in Sections 7 and 8 and their respective successors,
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 Underwriter and the Depositor and their
respective successors, and said controlling persons and officers and directors
and their respective successors, heirs and legal representatives, and for the
benefit of no other person or entity. No purchaser of Certificates from the
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 12. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State.
SECTION 13. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated except by
a writing signed by the party against
18
whom enforcement of such amendment, waiver, discharge or termination is sought.
This Agreement may be signed in any number of duplicate originals, each of
which shall be deemed an original, which taken together shall constitute one
and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter and the Depositor in accordance with its
terms.
Very truly yours,
XXXXXX FINANCIAL COMMERCIAL
Mortgage Asset Corp.
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
CONFIRMED AND ACCEPTED, as of the date first above written:
[Underwriter]
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
19
EXHIBIT A
FORM OF LEGEND TO
COMPUTATIONAL MATERIALS AND ABS TERM SHEETS
This information has been prepared in connection with the issuance of the
securities referenced above and is based in part on information provided by the
Mortgage Loan Sellers with respect to the expected characteristics of the
Mortgage Loans in which these securities will represent undivided beneficial
interests. The actual characteristics and performance of the Mortgage Loans
will differ from the assumptions used in preparing these materials, which are
hypothetical in nature. Changes in the assumptions may have a material impact
on the information set forth in these materials. No representation is made that
any performance or return hypothesized herein will be achieved. For example, it
is very unlikely that the Mortgage Loans will prepay at a constant rate or
follow a predictable pattern. NO REPRESENTATION IS MADE AS TO THE
APPROPRIATENESS, USEFULNESS, ACCURACY OR COMPLETENESS OF THESE MATERIALS OR THE
ASSUMPTIONS ON WHICH THEY ARE BASED. Additional information is available upon
request. These materials do not constitute an offer to buy or sell or a
solicitation of an offer to buy or sell any security or instrument in any
jurisdiction or to participate in any particular trading strategy. ANY SUCH
OFFER TO BUY OR SELL ANY SECURITY WOULD BE MADE ONLY PURSUANT TO A DEFINITIVE
PROSPECTUS AND PROSPECTUS SUPPLEMENT OR PRIVATE PLACEMENT MEMORANDUM PREPARED
BY THE ISSUER WHICH WOULD CONTAIN MATERIAL INFORMATION NOT CONTAINED IN THESE
MATERIALS. SUCH PROSPECTUS AND PROSPECTUS SUPPLEMENT OR PRIVATE PLACEMENT
MEMORANDUM WILL CONTAIN ALL MATERIAL INFORMATION IN RESPECT OF ANY SUCH
SECURITY OFFERED THEREBY AND ANY DECISION TO INVEST IN SUCH SECURITIES SHOULD
BE MADE SOLELY IN RELIANCE UPON SUCH PROSPECTUS AND PROSPECTUS SUPPLEMENT OR
PRIVATE PLACEMENT MEMORANDUM. ANY CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN
ARE TO BE READ IN CONJUNCTION WITH SUCH PROSPECTUS AND PROSPECTUS SUPPLEMENT OR
PRIVATE PLACEMENT MEMORANDUM. In the event of any such offering, these
materials, including any description of the Mortgage Loans contained herein,
shall be deemed superseded in their entirety by such Prospectus and Prospectus
Supplement or Private Placement Memorandum. To our Readers Worldwide: In
addition, please note that this information has been provided by
________________________ and approved by ______________________. We recommend
that investors obtain the advice of their ______________________ representative
about the investment concerned. NOT FOR DISTRIBUTION TO PRIVATE CUSTOMERS AS
DEFINED BY THE U.K. SECURITIES AND FUTURES AUTHORITY.
20
SCHEDULE 1
Underwriting Agreement, dated as of _______________, 199_.
Cut-Off Date: ________________, 199_
As used in this Agreement, the term "Registration Statement" refers to the
registration statement No. 033-_______ filed by Xxxxxx Financial Commercial
Mortgage Asset Corp. on Form S-3 and declared effective by the Commission.
CERTIFICATES:
Xxxxxx Assets Capital, Inc.
Mortgage Pass-Through Certificates, Series 199_-______,
Class ____
=============================================================================================================
Initial Aggregate
Principal (or, in the case of Class IO, Initial
Class Notional) Pass-Through Purchase
Designation Amount of Class(1) Rate Price(2) Rating(3)
-------------------------------------------------------------------------------------------------------------
$ % -----%
-------------------------------------------------------------------------------------------------------------
$ % -----%
-------------------------------------------------------------------------------------------------------------
$ % -----%
-------------------------------------------------------------------------------------------------------------
$ % -----%
-------------------------------------------------------------------------------------------------------------
$ % -----%
-------------------------------------------------------------------------------------------------------------
$ % -----%
-------------------------------------------------------------------------------------------------------------
$ % -----%
-------------------------------------------------------------------------------------------------------------
$ % -----%
=============================================================================================================
(1) Subject to a variance of plus or minus 5.0%
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. [The
purchase price for each class of the Certificates will include accrued
interest at the initial Pass-Through Rate therefor on the aggregate stated
or notional amount, as applicable, thereof to be purchased from the
Cut-Off Date to but not including the Closing Date.]
(3) By each of __________ ("______") and ________________ ("_______").
