EXHIBIT 1
$4,502,320,000
(approximate)
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES TRUST 2006-LDP9
Commercial Mortgage Pass-Through Certificates, Series 2006-LDP9 Classes
A-1, A-1S, A-2, A-2S, A-2SFL, A-3, A-3SFL, A-1A, A-M, A-MS, A-J, A-JS, B,
B-S, C, C-S, D, D-S, X
Underwriting Agreement
December 15, 2006
X.X. Xxxxxx Securities Inc.
As Representative of the
several Underwriters listed
in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., a Delaware
corporation (the "Depositor"), proposes to sell to the several Underwriters
listed in Schedule I (the "Underwriters"), for whom X.X. Xxxxxx Securities Inc.
is acting as representative (the "Representative"), $4,502,320,000 principal
amount of Commercial Mortgage Pass-Through Certificates, Series 2006-LDP9,
Classes A-1, A-1S, A-2, A-2S, A-2SFL, A-3, A-3SFL, A-1A, A-M, A-MS, A-J, A-JS,
B, B-S, C, C-S, D, D-S and X (the "Offered Certificates") as set forth in
Schedule I. The Offered Certificates, together with the Commercial Mortgage
Pass-Through Certificates, Series 2006-LDP9, Classes E, E-S, F, F-S, G, G-S, H,
H-S, J, K, L, M, N, P and NR (the "Private Certificates") are collectively
referred to herein as the "Certificates". The Certificates will represent
beneficial interests in a trust fund primarily consisting of a segregated pool
of mortgage loans secured by commercial, multifamily and manufactured housing
community properties, as described in the Prospectus referred to below (the
"Mortgage Loans"), and certain moneys received under each Mortgage Loan after
the related due date for such Mortgage Loan, which shall be: (i) in December
2006 or (ii) with respect to those mortgage loans that have their first due date
after December 2006, the origination date of the Mortgage Loan. The Certificates
will be issued pursuant to the provisions of a pooling and servicing agreement
to be dated as of December 1, 2006 (the "Pooling and Servicing Agreement"),
among the Depositor, Midland Loan Services, Inc., as a master servicer (a
"Master Servicer"), Capmark Finance Inc., as a master servicer (a "Master
Servicer"), Wachovia Bank, National Association, as a master servicer (a "Master
Servicer" and, together with Midland Loan Services, Inc. and Capmark Finance
Inc., the "Master Servicers"), LNR Partners, Inc. as special servicer (the
"Special Servicer"), LaSalle Bank National Association as trustee (the
"Trustee") and Xxxxx Fargo Bank, N.A. as paying agent (the "Paying Agent").
The Depositor hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Offered Certificates, as
follows:
1. Registration Statement. The Depositor has prepared and filed with
the Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-3 (No. 333-130786), as amended, including a
prospectus, relating to the Offered Certificates. The registration statement as
amended at the time when it became effective, or, if a post-effective amendment
is filed with respect thereto, as amended by such post-effective amendment at
the time of its effectiveness, is referred to in this Agreement as the
"Registration Statement". The Depositor also has filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Offered Certificates (the "Prospectus
Supplement"). The related prospectus covering the Offered Certificates in the
form first required to be filed to satisfy the condition set forth in Rule
172(c) under the Securities Act is hereinafter referred to as the "Basic
Prospectus", and the Basic Prospectus as supplemented by the Prospectus
Supplement in the form first required to be filed to satisfy the condition set
forth in Rule 172(c) under the Securities Act is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement, any
preliminary prospectus (a "Preliminary Prospectus") used in connection with the
offering of the Offered Certificates or the Prospectus shall be deemed to refer
to and include any exhibits thereto and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed as of the Closing Date (as defined below) under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") that are deemed to
be incorporated by reference therein.
At or prior to the time when sales to investors of the Offered
Certificates were first made (the "Time of Sale"), the Depositor had prepared
the following information (collectively, the "Time of Sale Information"): (i) a
free writing prospectus dated December 1, 2006 (the "Preliminary Free Writing
Prospectus"), and a free writing prospectus dated December 13, 2006 (the "Second
Free Writing Prospectus"), (ii) a supplemental structural and collateral
information free writing prospectus dated as of December 1, 2006 (the "Term
Sheet"), and (iii) each "free-writing prospectus" (as defined pursuant to Rule
405 under the Securities Act) (a "Free Writing Prospectus") listed on Exhibit 1
hereto. If, subsequent to the date of this Agreement, the Depositor and the
Underwriters have determined that such information included an untrue statement
of material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading and have terminated their old purchase contracts and
entered into new purchase contracts with purchasers of the Offered Certificates,
then "Time of Sale" will refer to the time when such new purchase contracts are
entered into and "Time of Sale Information" will refer to the information
available to purchasers at the time of entry into the first such new purchase
contract, including any information that corrects such material misstatements or
omissions ("Corrective Information").
When used in this Agreement, "Basic Documents" shall mean (i) the
Pooling and Servicing Agreement, (ii) the Certificates, (iii) the mortgage loan
purchase agreement, dated as of December 1, 2006, between JPMorgan Chase Bank,
N.A. ("JPMCB") and the Depositor (the "JPMCB Mortgage Loan Purchase Agreement"),
(iv) the mortgage loan purchase agreement, dated as of December 1, 2006, between
UBS Real Estate Securities Inc. ("UBS") and the Depositor (the "UBS Mortgage
Loan Purchase Agreement"), (v) the mortgage loan purchase agreement, dated as of
December 1, 2006, between IXIS Real Estate Capital Inc. ("IXIS") and the
Depositor (the "IXIS Mortgage Loan Purchase Agreement"), (vi) the mortgage loan
purchase agreement, dated as of December 1, 2006, between PNC Bank, National
Association ("PNC") and the Depositor (the "PNC Mortgage Loan Purchase
Agreement"), (vii) the mortgage loan purchase agreement, dated as of December 1,
2006, between Eurohypo AG, New York Branch ("Eurohypo") and the Depositor (the
"Eurohypo Mortgage Loan Purchase Agreement"), (viii) the mortgage loan purchase
agreement, dated as of December 1, 2006, between Nomura Credit & Capital, Inc.
("Nomura") and the Depositor (the "Nomura Mortgage Loan Purchase Agreement") and
(ix) the mortgage loan purchase agreement, dated as of December 1, 2006, between
AIG Mortgage Capital, LLC ("AIG"), SOME II, LLC and the Depositor (the "AIG
Mortgage Loan Purchase Agreement" and, collectively with the JPMCB Mortgage Loan
Purchase Agreement, the UBS Mortgage Loan Purchase Agreement, the IXIS Mortgage
Loan Purchase Agreement, PNC Mortgage Loan Purchase Agreement, the Eurohypo
Mortgage Loan Purchase Agreement and the Nomura Mortgage Loan Purchase
Agreement, the "Mortgage Loan Purchase Agreements") and (x) any other contract,
agreement or instrument which is or is to be entered into by the Depositor on
the Closing Date or otherwise in connection with any of the foregoing or this
Agreement. JPMCB, UBS, IXIS, PNC, Eurohypo, Nomura and AIG are collectively
referred to herein as the "Sellers". To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Pooling and Servicing Agreement.
2. Purchase of the Offered Certificates by the Underwriters.
(a) The Depositor agrees to sell the Offered Certificates to the
several Underwriters as provided in this Agreement, and each Underwriter, on the
basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly,
to purchase from the Depositor, the respective principal amount of each class of
the Offered Certificates set forth opposite such Underwriter's name in Schedule
I hereto at the Purchase Price set forth in Schedule I hereto, plus accrued
interest on the actual principal amount thereof at the applicable Pass-Through
Rate from December 1, 2006 to the Closing Date (as defined below). The Depositor
will not be obligated to deliver any of the Offered Certificates except upon
payment for all the Offered Certificates to be purchased as provided herein.
(b) The Depositor understands that the Underwriters intend to make a
public offering of their respective portions of the Offered Certificates as soon
after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Offered Certificates on
the terms set forth in the Time of Sale Information and the Prospectus. The
Depositor acknowledges and agrees that the Underwriters may offer and sell the
Offered Certificates to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell any Offered Certificates purchased by it to or
through any Underwriter.
(c) Payment for and delivery of the Offered Certificates will be
made at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Xxx Xxxx Xxxx time, on December 21,
2006, or at such other time on the same or such other date, not later than the
fifth business day thereafter, as the Representative and the Depositor may agree
upon in writing. The time and date of such payment and delivery is referred to
herein as the "Closing Date".
(d) Payment for the Offered Certificates shall be made by wire
transfer in immediately available funds to the account(s) specified by the
Depositor to the Representative against delivery to the nominee of The
Depository Trust Company, for the account of the Underwriters, of one or more
global notes representing the Offered Certificates (collectively, the "Global
Note"), with any transfer taxes payable in connection with the sale of the
Offered Certificates duly paid by the Depositor. The Global Note will be made
available for inspection by the Representative not later than 1:00 P.M., New
York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Depositor. The Depositor
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration
Statement has been declared effective by the Commission under the Securities
Act; no order suspending the effectiveness of the Registration Statement has
been issued by the Commission and no proceeding for that purpose has been
initiated or, to the best knowledge of the Depositor, threatened by the
Commission; and, the Registration Statement and the Prospectus and any amendment
thereto, at the time the Registration Statement became effective complied, and
as of the date of the Prospectus Supplement will comply, in all material
respects with the Securities Act, and the Registration Statement did not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; and as of the date of the Prospectus and any
amendment or supplement thereto and on the Closing Date, the Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Depositor makes no representation and warranty
with respect to (i) any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Depositor in writing by such Underwriter through the Representative (such
information, described in Section 15 hereto, referred to herein as
"Underwriters' Information") expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto; (ii) the Sellers'
Information (as defined in Section 7(a)); (iii) the information set forth in the
Prospectus under the heading "Transaction Parties--The Master Servicers" (the
"Master Servicers' Information"); (iv) the information set forth in the
Prospectus under the heading "Transaction Parties--The Special Servicer" (the
"Special Servicer's Information"); (v) the information set forth in the
Prospectus under the heading "Transaction Parties--The Trustee and Custodian,"
but only with respect to the first, third, fourth, fifth, sixth and seventh
paragraphs thereof (the "Trustee's Information); and (vi) the information set
forth in the Prospectus under the heading "Transaction Parties--The Paying
Agent, Certificate Registrar and Authenticating Agent", but only with respect to
the first, fourth, fifth and sixth paragraphs thereof (the "Paying Agent's
Information"); the conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the
Time of Sale did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Depositor makes no
representation and warranty with respect to (i) any Underwriters' Information in
such Time of Sale Information, (ii) any Sellers' Information in such Time of
Sale Information, (iii) any Master Servicers' Information in such Time of Sale
Information, (iv) any Special Servicer's Information in such Time of Sale
Information (v) any Trustee's Information in the Time of Sale Information or
(vi) any Paying Agent's Information in the Time of Sale Information.
(c) Issuer Free Writing Prospectus. Other than any Preliminary
Prospectus and the Prospectus, the Depositor (including its agents and
representatives other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Offered Certificates other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act, (ii) the Time of Sale
Information and (iii) each other written communication approved in writing in
advance by the Representative (each such communication referred to in clause
(ii) and this clause (iii) constituting an "issuer free writing prospectus", as
defined in Rule 433(h) under the Securities Act, being referred to as an "Issuer
Free Writing Prospectus"). Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been filed in accordance with
Section 8 (to the extent required thereby) and did not at the Time of Sale, and
at the Closing Date will not, contain any untrue statements of a material fact
or (when read in conjunction with the other Time of Sale Information) omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Depositor makes no representation and warranty with respect to (i) any
Underwriters' Information in any Issuer Free Writing Prospectus or (ii) any
Seller's Information in any Issuer Free Writing Prospectus.
(d) No Material Adverse Change. Other than as set forth or
contemplated in the Prospectus and the Time of Sale Information, since the date
as of which information is given in the Registration Statement, the Time of Sale
Information or the Prospectus, there has not been any material adverse change or
any development involving a prospective material adverse change, in or affecting
the business, properties, prospects, management, financial position,
stockholders' equity or results of operations of the Depositor.
(e) Organization and Good Standing. The Depositor has been duly
organized and is a validly existing organization in good standing under the laws
of its jurisdiction of organization, is duly qualified to do business and is in
good standing as a foreign entity in each jurisdiction in which the conduct of
its business requires such qualification, and has all power and authority
necessary to enter into and perform its obligations under this Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements and to
own or hold its properties and to conduct the business in which it is engaged,
except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have a material adverse effect on
the transactions contemplated herein or in the Basic Documents (a "Material
Adverse Effect").
(f) Due Authorization. The Depositor has full right, power and
authority to execute and deliver this Agreement and the Basic Documents and to
perform its obligations hereunder and thereunder; and all action (corporate or
other) required to be taken for the due and proper authorization, execution and
delivery of this Agreement and each of the Basic Documents and the consummation
of the transactions contemplated thereby has been duly and validly taken.
(g) The Pooling and Servicing Agreement. The Pooling and Servicing
Agreement has been duly authorized by the Depositor and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability (collectively, the "Enforceability Exceptions").
(h) The Certificates. The Certificates have been duly authorized
and, when duly executed, authenticated, issued and delivered as provided in the
Pooling and Servicing Agreement and paid for as provided herein, will be duly
and validly issued and outstanding and will be entitled to the benefits and
security afforded by the Pooling and Servicing Agreement.
(i) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Depositor.
(j) Basic Documents. Each of the Basic Documents to which the
Depositor is a party has been duly authorized by the Depositor and when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Depositor
enforceable against the Depositor in accordance with its terms, subject to the
Enforceability Exceptions.
(k) Descriptions of Basic Documents. Each Basic Document conforms in
all material respects to the description thereof contained in the Registration
Statement, the Time of Sale Information and the Prospectus.
(l) No Violation or Default. The Depositor is not (i) in violation
of its charter, by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party or
by which the Depositor is bound or to which any of the property or assets of the
Depositor is subject; or (iii) in violation of any law or statute or any
judgment, order or regulation of any court or governmental agency or body having
jurisdiction over the Depositor, or any of its properties ("Governmental
Authority"), except, in the case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(m) No Conflicts with Existing Instruments. The execution, delivery
and performance by the Depositor of this Agreement and each of the Basic
Documents, the issuance and sale of the Certificates and compliance by the
Depositor with the terms thereof and the consummation of the transactions
contemplated by this Agreement and the Basic Documents will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a 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 indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor is subject; (ii)
result in any violation of the provisions of the charter, by-laws or similar
organizational documents of the Depositor; or (iii) result in the violation of
any law or statute or any judgment, order or regulation of any Governmental
Authority, except, in the case of clauses (i) and (iii) above, for any such
conflict, breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(n) No Consents Required. No consent, approval, authorization,
order, registration or qualification of or with any Governmental Authority is
required for the execution, delivery and performance by the Depositor of this
Agreement and each of the Basic Documents, the issuance and sale of the
Certificates and compliance by the Depositor with the terms thereof and the
consummation of the transactions contemplated by this Agreement and the Basic
Documents, except for the registration of the Certificates under the Securities
Act and such consents, approvals, authorizations, orders and registrations or
qualifications as have already been obtained or as of the Closing Date will have
been obtained or such as may be required under applicable state securities laws
in connection with the purchase and distribution of the Offered Certificates by
the Underwriters.
(o) Legal Proceedings. Except as described in the Prospectus and the
Time of Sale Information, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Depositor is
or may be a party or to which any property of the Depositor is or may be the
subject that, individually or in the aggregate, if determined adversely to the
Depositor, could reasonably be expected to have a Material Adverse Effect; to
the best knowledge of the Depositor, no such investigations, actions, suits or
proceedings are threatened or contemplated by any Governmental Authority or
threatened by others; and there are no statutes, regulations or contracts or
other documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus and that are not so filed or described.
(p) [Reserved].
(q) Title to Mortgage Loans. The Depositor has good and marketable
title in fee simple to the Mortgage Loans free and clear of all liens,
encumbrances, claims and defects and imperfections of title except those that
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(r) Investment Company Act. Neither the Depositor nor the trust fund
created under the Pooling and Servicing Agreement (the "Trust Fund") is, and,
after giving effect to the offering and sale of the Certificates and the
application of the proceeds thereof as described in the Prospectus, neither the
Depositor nor the Trust Fund will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, "Investment Company Act").
(s) Representations in Basic Documents. The representations and
warranties of the Depositor contained in the Basic Documents are true and
correct in all material respects.
(t) Taxes. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the Pooling and
Servicing Agreement and the delivery and sale of the 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.
(u) Business Relationship with the Underwriters. The Depositor
acknowledges and agrees that the Underwriters are acting solely in the capacity
of an arm's length contractual counterparty to the Depositor with respect to the
offering of Certificates contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Depositor or any other person. Additionally,
neither the Representative nor any other Underwriter is advising the Depositor
or any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Depositor shall consult with its own advisors
concerning such matters and shall be responsible for making their own
independent investigation and appraisal of the transactions contemplated hereby,
and the Underwriters shall have no responsibility or liability to the Depositor
with respect thereto. Any review by the Underwriters of the Depositor, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Depositor.
(v) Ineligible Issuer. The Depositor is not, and on the date on
which the first bona fide offer of the Certificates is made will not be, an
"ineligible issuer", as defined in Rule 405 under the Securities Act.
(w) Regulation AB Compliance. The Depositor will comply with the
applicable provisions of Regulation AB, as promulgated by the Commission under
the Exchange Act (17 C.F.R. ss.ss.229.1100 - 229.1123), in all respects.
4. Further Agreements of the Depositor. The Depositor covenants and
agrees with each Underwriter that:
(a) Filing of Prospectus and Issuer Free Writing Prospectuses. The
Depositor will file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) under the Securities Act; subject to Section 8,
will file any Issuer Free Writing Prospectus to the extent required by Rule 433
under the Securities Act; and the Depositor will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus to the Underwriters in New
York City prior to 10:00 A.M., New York City time, on the business day next
succeeding the date of this Agreement, or at such other time and date as may be
acceptable to the Representative, in such quantities as the Representative may
reasonably request.
(b) Delivery of Copies. The Depositor will deliver, without charge,
(i) to the Representative, one signed copy of the Registration Statement as
originally filed and each amendment thereto, in each case including all exhibits
and consents filed therewith; and (ii) to each Underwriter (A) a conformed copy
of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and (B) during the
Prospectus Delivery Period, as many copies of the Prospectus (including all
amendments and supplements thereto) and each Issuer Free Writing Prospectus as
the Representative may reasonably request. As used herein, the term "Prospectus
Delivery Period" means such period of time after the first date of the public
offering of the Offered Certificates as in the opinion of counsel for the
Underwriters a prospectus relating to the Offered Certificates is required by
law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Offered Certificates by any
Underwriter or dealer.
(c) Amendments or Supplements. Before preparing, using, authorizing,
approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the
Prospectus, the Depositor will furnish to the Representative and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or
supplement for review and will not prepare, use, authorize, approve, refer to or
file any such Issuer Free Writing Prospectus or file any such proposed amendment
or supplement to which the Representative reasonably objects.
(d) Notice to the Representative. The Depositor will advise the
Representative promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose; (v) of the occurrence of any event within the
Prospectus Delivery Period 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 a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading; and (vi) of the receipt by the Depositor of any
notice with respect to any suspension of the qualification of the Offered
Certificates for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Depositor will use its
reasonable best efforts to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Offered Certificates and, if issued, will obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If, during the Prospectus
Delivery Period: (i) any event shall occur or condition shall exist as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading; or (ii) it is necessary to amend or supplement the
Prospectus to comply with law, the Depositor will immediately notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above,
file with the Commission and furnish to the Underwriters and to such dealers as
the Representative may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so
amended or supplemented will not, in light of the circumstances existing when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(f) Blue Sky Compliance. The Depositor will qualify the Offered
Certificates for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative shall reasonably request and will continue
such qualifications in effect so long as may be required for distribution of the
Offered Certificates; provided that the Depositor shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in
any such jurisdiction where it would not otherwise be required to so qualify;
(ii) file any general consent to service of process in such jurisdiction; or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject.
(g) Earning Statement. The Depositor will make generally available
to its security holders and the Representative as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Depositor
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Copies of Reports. So long as the Offered Certificates are
outstanding, the Depositor shall furnish, or cause to be furnished, to each
Underwriter (i) copies of each certificate, the annual statements of compliance
and the annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to the Pooling and Servicing Agreement by
first class mail as soon as practicable after such statements and reports are
furnished to the Trustee; (ii) copies of each amendment to any of the Basic
Documents; and (iii) copies of all reports or other communications (financial or
other) furnished to holders of the Offered Certificates, and copies of any
reports and financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange.
(i) Use of Proceeds. The Depositor will apply the net proceeds from
the sale of the Offered Certificates as described in the Registration Statement,
the Time of Sale Information and the Prospectus.
(j) Rating Agencies. To the extent, if any, that the ratings
provided with respect to the Offered Certificates by the Rating Agencies (as
defined in Section 6(p)) are conditional upon the furnishing of documents or the
taking of any other action by the Depositor, the Depositor shall use its best
efforts to furnish such documents and take any other such action.
(k) Exchange Act Filings. The Depositor will file or cause to be
filed all documents and certifications required to be filed by the Commission
pursuant to the Exchange Act within the time periods required by the Exchange
Act and the rules and regulations thereunder.
(l) Record Retention. The Depositor will, pursuant to reasonable
procedures developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with Rule 433
under the Securities Act.
5. Representations of the Several Underwriters. Each Underwriter
hereby represents and agrees, severally and not jointly, that in relation to
each Member State of the European Economic Area which has implemented the
Prospectus Directive (each, a "Relevant Member State"), with effect from and
including the date on which the Prospectus Directive is implemented in that
Relevant Member State (the "Relevant Implementation Date") it has not made and
will not make an offer of the Offered Certificates to the public in that
Relevant Member State prior to the publication of a prospectus in relation to
the Offered Certificates which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except that it may, with
effect from and including the Relevant Implementation Date, make an offer of the
Offered Certificates to the public in that Relevant Member State at any time:
(a) to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(b) to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a total
balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual
or consolidated accounts; or
(c) in any other circumstances which do not require the publication
by the Depositor of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this representation, the expression an "offer of
the Certificates to the public" in relation to any Offered Certificates in any
Relevant Member State means the communication in any form and by any means of
sufficient information on the terms of the offer and the Offered Certificates to
be offered so as to enable an investor to decide to purchase or subscribe the
Offered Certificates, as the same may be varied in that Member State by any
measure implementing the Prospectus Directive in that Member State, and the
expression "Prospectus Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Each Underwriter, severally and not jointly, hereby further
represents and agrees, with respect to the United Kingdom, that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act) received by it
in connection with the issue or sale of the Offered Certificates in
circumstances in which Section 21(1) of the Financial Services and
Markets Act does not apply to the Depositor; and
(ii) it has complied and will comply with all applicable provisions
of the Financial Services and Markets Act with respect to anything
done by it in relation to the Offered Certificates in, from or
otherwise involving the United Kingdom.
6. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Offered Certificates on the Closing Date as provided
herein is subject to the performance by the Depositor of its covenants and other
obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed under the
Securities Act, such post-effective amendment shall have become effective, and
the Representative shall have received notice thereof, not later than 5:00 P.M.,
New York City time, on the date hereof; no order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such
purpose shall be pending before or threatened by the Commission; the Prospectus
and each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Securities Act (in the case of an Issuer Free Writing
Prospectus, to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 4(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable
satisfaction of the Representative.
(b) Representations and Warranties. The representations and
warranties of the Depositor contained herein shall be true and correct on the
date hereof and on and as of the Closing Date and the statements of the
Depositor and its officers made in any certificates delivered pursuant to this
Agreement shall be true and correct on and as of the Closing Date.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not
described in the Time of Sale Information (excluding any Corrective Information)
and the Prospectus (excluding any amendment or supplement thereto) and the
effect of which, in the judgment of the Representative, makes it impracticable
or inadvisable to proceed with the offering, sale or delivery of the Offered
Certificates on the terms and in the manner contemplated by this Agreement and
the Prospectus.
(d) Officer's Certificate. The Representative shall have received on
and as of the Closing Date a certificate of an executive officer of the
Depositor satisfactory to the Representative (i) confirming that such officer
has carefully reviewed the Registration Statement, the Time of Sale Information
and the Prospectus and, to the best knowledge of such officer, the
representations set forth in Sections 3(a), 3(b) and 3(c) hereof are true and
correct, (ii) confirming that the other representations and warranties of the
Depositor in this Agreement are true and correct and that the Depositor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date and (iii) to
the effect set forth in Section 3(d) hereof and in subsection (a) above.
(e) Mortgage Loan Purchase Agreements; Indemnification Agreements.
Each of the Mortgage Loan Purchase Agreements shall have been executed and
delivered. Each of (i) the Indemnification Agreement dated December 15, 2006, by
and between JPMCB and the Depositor (the "JPMCB Indemnification Agreement"),
(ii) the Indemnification Agreement dated December 15, 2006, by and between JPMCB
and UBS (the "UBS Indemnification Agreement"), (iii) the Indemnification
Agreement dated December 15, 2006, by and between IXIS and the Depositor (the
"IXIS Indemnification Agreement"), (iv) the Indemnification Agreement dated
December 15, 2006 by and between PNC and the Depositor (the "PNC Indemnification
Agreement"), (v) the Indemnification Agreement dated December 15, 2006 by and
between Eurohypo and the Depositor (the "Eurohypo Indemnification Agreement"),
(vi) the Indemnification Agreement dated December 15, 2006, by and between
Nomura and the Depositor (the "Nomura Indemnification Agreement") and (vii) the
Indemnification Agreement dated December 15, 2006 by and between AIG and the
Depositor (the "AIG Indemnification Agreement" and, collectively with the JPMCB
Indemnification Agreement, the UBS Indemnification Agreement, the IXIS
Indemnification Agreement, the PNC Indemnification Agreement, the Eurohypo
Indemnification Agreement and the Nomura Indemnification Agreement, the
"Indemnification Agreements") shall have been executed and delivered.
(f) Comfort Letters. On the date of this Agreement and on the
Closing Date, Xxxxx & Xxxxx shall have furnished to the Representative, at the
request of the Depositor, letters, dated the respective dates of delivery
thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representative.
(g) Opinion of Counsel for the Depositor. (i) Xxxxxxxxxx, Xxxxxxxxxx
& Xxxx LLP, counsel for the Depositor, shall have furnished to the
Representative, at the request of the Depositor, their written opinion, dated
the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representative and (ii) Xxxxxx X. Xxxxx, in-house
counsel to the Depositor, shall have furnished to the Representative, at the
request of the Depositor, a written opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representative.
(h) Opinion of Counsel for the Underwriters. The Representative
shall have received on and as of the Closing Date an opinion of Xxxxxxx Xxxxxxxx
& Xxxx LLP, counsel for the Underwriters, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass
upon such matters.
(i) Opinion of Counsel for Midland Loan Services, Inc., as a Master
Servicer. Counsel to Midland Loan Services, Inc. ("Midland") shall have
furnished to the Underwriters its opinion, dated the Closing Date, in form and
substance satisfactory to each Underwriter, substantially to the effect that:
(i) Midland is validly existing and in good standing as a
corporation under the laws of the State of Delaware with full power and
authority to enter into and perform its obligations under the Pooling and
Servicing Agreement, and is qualified to do business in all other
jurisdictions in which it owns or leases property or where the conduct of
its business requires such qualification;
(ii) there are no legal or governmental proceedings pending to which
Midland is a party or of which any property of Midland is the subject
which, if determined adversely to Midland, might interfere with or
adversely affect the consummation of the transactions contemplated in the
Pooling and Servicing Agreement; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
Midland enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by Midland with all applicable provisions of the
Certificates and the Pooling and Servicing Agreement and the consummation
of the transactions therein contemplated will not (A) conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any liens
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Midland is a party or by which
Midland is bound or to which any of the property or assets of Midland is
subject or (B) result in any violation of the provisions of the charter,
by-laws or similar organizational documents of Midland or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over Midland or any of its properties; and
(v) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by Midland of the transactions contemplated
by the Pooling and Servicing Agreement.
(j) Opinion of Counsel for Capmark Finance Inc., as a Master
Servicer. Counsel to Capmark Finance Inc. ("Capmark") shall have furnished to
the Underwriters its opinion, dated the Closing Date, in form and substance
satisfactory to each Underwriter, substantially to the effect that:
(i) Capmark is validly existing and in good standing as a
corporation under the laws of the State of California with full power and
authority to enter into and perform its obligations under the Pooling and
Servicing Agreement, and is qualified to do business in all other
jurisdictions in which it owns or leases property or where the conduct of
its business requires such qualification;
(ii) there are no legal or governmental proceedings pending to which
Capmark is a party or of which any property of Capmark is the subject
which, if determined adversely to Capmark, might interfere with or
adversely affect the consummation of the transactions contemplated in the
Pooling and Servicing Agreement; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
Capmark enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by Capmark with all applicable provisions of the
Certificates and the Pooling and Servicing Agreement and the consummation
of the transactions therein contemplated will not (A) conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any liens
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Capmark is a party or by which
Capmark is bound or to which any of the property or assets of Capmark is
subject or (B) result in any violation of the provisions of the charter,
by-laws or similar organizational documents of Capmark or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over Capmark or any of its properties; and
(v) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by Capmark of the transactions contemplated
by the Pooling and Servicing Agreement.
(k) Opinion of Counsel for Wachovia Bank, National Association., as
a Master Servicer. Counsel to Wachovia Bank, National Association ("Wachovia")
shall have furnished to the Underwriters its opinion, dated the Closing Date, in
form and substance satisfactory to each Underwriter, substantially to the effect
that:
(i) Wachovia is validly existing and in good standing as a national
banking association under the laws of the United States with full power
and authority to enter into and perform its obligations under the Pooling
and Servicing Agreement, and is qualified to do business in all other
jurisdictions in which it owns or leases property or where the conduct of
its business requires such qualification;
(ii) there are no legal or governmental proceedings pending to which
Xxxxxxxx is a party or of which any property of Wachovia is the subject
which, if determined adversely to Wachovia, might interfere with or
adversely affect the consummation of the transactions contemplated in the
Pooling and Servicing Agreement; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
Wachovia enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by Wachovia with all applicable provisions of
the Certificates and the Pooling and Servicing Agreement and the
consummation of the transactions therein contemplated will not (A)
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any liens pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which Wachovia is a party or
by which Wachovia is bound or to which any of the property or assets of
Wachovia is subject or (B) result in any violation of the provisions of
the charter, by-laws or similar organizational documents of Wachovia or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over Wachovia or any of its properties;
and
(v) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by Wachovia of the transactions contemplated
by the Pooling and Servicing Agreement.
(l) Opinion of Counsel for the Special Servicer. Counsel to the
Special Servicer shall have furnished to the Underwriters its opinion, dated the
Closing Date, in form and substance satisfactory to each Underwriter,
substantially to the effect that:
(i) the Special Servicer is validly existing and in good standing as
a corporation under the laws of the State of Florida with full power and
authority to enter into and perform its obligations under the Pooling and
Servicing Agreement, and is qualified to do business in all other
jurisdictions in which it owns or leases property or where the conduct of
its business requires such qualification;
(ii) there are no legal or governmental proceedings pending to which
the Special Servicer is a party or of which any property of the Special
Servicer is the subject which, if determined adversely to the Special
Servicer, might interfere with or adversely affect the consummation of the
transactions contemplated in the Pooling and Servicing Agreement; to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
the Special Servicer enforceable in accordance with its terms, except that
the enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium, or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) the compliance by the Special Servicer with all applicable
provisions of the Certificates and the Pooling and Servicing Agreement and
the consummation of the transactions therein contemplated will not (A)
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of
any liens pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Special Servicer
is a party or by which the Special Servicer is bound or to which any of
the property or assets of the Special Servicer is subject or (B) result in
any violation of the provisions of the Certificate of Incorporation or the
By-laws of the Special Servicer or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Special Servicer or any of its properties; and
(v) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Special Servicer of the transactions
contemplated by the Pooling and Servicing Agreement.
(m) Opinion of Counsel for LaSalle Bank National Association, as
Trustee. Counsel to LaSalle Bank National Association ("LaSalle") shall have
furnished to the Underwriters its opinion, dated the Closing Date, in form and
substance satisfactory to each Underwriter, substantially to the effect that:
(i) LaSalle is a national banking association validly existing and
in good standing under the laws of the United States with full power and
authority to enter into and perform its obligations under the Pooling and
Servicing Agreement;
(ii) there are no legal or governmental proceedings pending to which
XxXxxxx is a party or of which any property of LaSalle is the subject
which, if determined adversely to LaSalle, might interfere with or
adversely affect the consummation of the transactions contemplated in the
Pooling and Servicing Agreement; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iii) the Pooling and Servicing Agreement has been duly authorized,
executed and delivered by and constitutes a valid and binding agreement of
LaSalle enforceable in accordance with its terms, except that the
enforceability thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or thereafter in
effect relating to creditors' rights generally and (B) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iv) LaSalle has duly executed, authenticated and delivered the
Certificates as provided in the Pooling and Servicing Agreement;
(v) the compliance by LaSalle with all applicable provisions of the
Pooling and Servicing Agreement will not (A) conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any liens pursuant to
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which LaSalle is a party or by which LaSalle is bound or
to which any of the property or assets of LaSalle is subject or (B) result
in any violation of the provisions of the charter, by-laws or similar
organizational documents of LaSalle or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over LaSalle or any of its properties;
(vi) no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by XxXxxxx of the transactions contemplated
by the Pooling and Servicing Agreement; and
(vii) in the event that a Master Servicer defaults in its obligation
to make Advances pursuant to the Pooling and Servicing Agreement, LaSalle
is not, as of the date hereof, prohibited by any provision of its
organizational documents or by any provision of the banking and trust laws
of the jurisdiction of its organization from assuming, pursuant to the
Pooling and Servicing Agreement, the obligation to make such Advances.
(n) Opinion of Counsel for Xxxxx Fargo Bank, N.A., as Paying Agent.
Counsel to Xxxxx Fargo Bank, N.A. ("Xxxxx Fargo") shall have furnished to the
Underwriters its opinion, dated the Closing Date, in form and substance
satisfactory to each Underwriter, substantially to the effect that:
(i) Xxxxx Fargo is a national banking association validly
existing and in good standing under the laws of the United States
with full power and authority to enter into and perform its
obligations under the Pooling and Servicing Agreement;
(ii) there are no legal or governmental proceedings pending to
which Xxxxx Fargo is a party or of which any property of Xxxxx Fargo
is the subject which, if determined adversely to Xxxxx Fargo, might
interfere with or adversely affect the consummation of the
transactions contemplated in the Pooling and Servicing Agreement; to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(iii) the Pooling and Servicing Agreement has been duly
authorized, executed and delivered by and constitutes a valid and
binding agreement of Xxxxx Fargo enforceable in accordance with its
terms, except that the enforceability thereof may be subject to (A)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or thereafter in effect relating to creditors' rights
generally and (B) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law);
(iv) Xxxxx Fargo has duly executed, authenticated and
delivered the Certificates as provided in the Pooling and Servicing
Agreement;
(v) the compliance by Xxxxx Fargo with all applicable
provisions of the Pooling and Servicing Agreement will not (A)
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any liens pursuant to any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which Xxxxx Fargo is a party or by which Xxxxx Fargo
is bound or to which any of the property or assets of Xxxxx Fargo is
subject or (B) result in any violation of the provisions of the
charter, by-laws or similar organizational documents of Xxxxx Fargo
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over Xxxxx Fargo or
any of its properties;
(vi) no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the consummation by Xxxxx Fargo of the
transactions contemplated by the Pooling and Servicing Agreement;
and
(o) Opinions of Counsel to Sellers. Counsel for each Seller shall
have furnished to the Underwriters its opinion, dated the Closing Date, in form
and substance satisfactory to each Underwriter.
(p) Rating Agency Opinions. Each Underwriter shall be addressed in
any opinion from any counsel delivering any written opinion to the Rating
Agencies in connection with the transaction described herein which is not
otherwise described in this Agreement.
(q) Rating Agency Letters. Each Underwriter shall have received
copies of letters from Xxxxx'x Investors Service, Inc., and Standard & Poor's
Ratings Services, a division of The McGraw Hill Companies, Inc. and Fitch, Inc.
(collectively, the "Rating Agencies") stating that the Offered Certificates are
rated as set forth on Schedule II hereto by the Rating Agencies.
(r) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any Governmental Authority that would, as of the Closing Date, prevent
the issuance or sale of the Certificates; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Certificates.
(s) Good Standing. The Representative shall have received on and as
of the Closing Date satisfactory evidence of the good standing of the Depositor
in its jurisdiction of organization and its good standing as a foreign entity in
such other jurisdictions as the Representative may reasonably request, in each
case in writing or any standard form of telecommunication from the appropriate
Governmental Authorities of such jurisdictions.
(t) Additional Documents. On or prior to the Closing Date, the
Depositor shall have furnished to the Representative such further certificates
and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Depositor agrees to
indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with
any suit, action, investigations or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are
based upon (1) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (or any amendment
or supplement thereto) or any Preliminary Prospectus, or the attached diskette
to any Preliminary Prospectus or the Prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (2) any untrue
statement or alleged untrue statement of a material fact contained in the Time
of Sale Information or any Issuer Information (as defined in Section 8(b))
contained in any Free Writing Prospectus prepared by or on behalf of an
Underwriter (an "Underwriter Free Writing Prospectus") or contained in any Free
Writing Prospectus which is required to be filed pursuant to Section 8(e)(iii)
or Section 8(h), or the omission or alleged omission to state a material fact
required to make the statements therein (when read in conjunction with the other
Time of Sale Information), in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with (i) information with respect to which each Underwriter has agreed to
indemnify the Depositor pursuant to Section 7(b), (ii) information with respect
to which each Seller has agreed to indemnify the Underwriters pursuant to the
Indemnification Agreements (such information referred to herein as the "Sellers'
Information"), (iii) information with respect to which the Master Servicers have
agreed to indemnify the Underwriters pursuant to the Master Servicer
Indemnification Agreements (such information referred to herein as the Master
Servicers' Information), (iv) information with respect to which the Special
Servicer has agreed to indemnify the Underwriters pursuant to the Special
Servicer Indemnification Agreement (such information referred to herein as the
Special Servicer's Information), (v) information with respect to which the
Trustee has agreed to indemnify the Underwriters pursuant to the Trustee's
Indemnification Agreement (such information referred to herein as the Trustee's
Information) or (vi) information with respect to which the Paying Agent has
agreed to indemnify the Underwriters pursuant to the Paying Agent's
Indemnification Agreement (such information referred to herein as the Paying
Agent's Information); provided, that with respect to any such untrue statement
in or omission from the Time of Sale Information, the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of any
Underwriter to the extent that the sale to the person asserting any such loss,
claim, damage or liability was an initial resale by such Underwriter and any
such loss, claim, damage or liability of or with respect to such Underwriter
results from the fact that (i) prior to the Time of Sale, the Depositor, the
Sellers, the Master Servicers, the Special Servicer, the Trustee and the Paying
Agent, as applicable, shall have notified such Underwriter that the Time of Sale
Information contains an untrue statement of material fact or omits to state
therein a material fact required to be stated therein in order to make the
statements therein not misleading, (ii) such untrue statement or omission of a
material fact was corrected by Corrective Information and such Corrective
Information was provided to such Underwriter far enough in advance of the Time
of Sale (in any event, no later than two business days prior to the Time of
Sale) so that such Corrective Information could have been provided to such
person prior to the Time of Sale for such person, (iii) the Underwriter did not
send or give such Corrective Information to such person at or prior to the Time
of Sale of the Offered Certificates to such person and (iv) such loss, claim,
damage or liability would not have occurred had the Underwriter delivered the
Corrective Information to such person as provided for in clause (iii) above.
(b) Indemnification of the Depositor. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Depositor, its
directors, its officers who signed the Registration Statement and each person,
if any, who controls the Depositor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities that arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission contained in (i)
any Underwriters' Information in the Registration Statement, any Issuer Free
Writing Prospectus, any Time of Sale Information and the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus or (ii) any
Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter
(in the case of an omission or an alleged omission, when read in conjunction
with the Time of Sale Information); provided, that no Underwriter shall be
obligated to so indemnify and hold harmless (x) to the extent that the Depositor
is entitled to indemnification or contribution therefor under the indemnity of
any Seller, any Master Servicer, the Special Servicer, the Trustee or the Paying
Agent, as applicable, set forth in the Indemnification Agreements, (y) with
respect to information that is also contained in the Time of Sale Information or
the Prospectus or (z) to the extent such losses, claims, damages or liabilities
are caused by a misstatement or omission resulting from an error or omission in
the Issuer Information which was not corrected by Corrective Information
subsequently supplied by the Depositor, any Seller, any Master Servicer, the
Special Servicer, the Trustee or the Paying Agent, as applicable, to the
Underwriter far enough in advance of the Time of Sale (in any event, no later
than two business days prior to the Time of Sale) so that such Corrective
Information could have been provided to a prospective purchaser prior to the
Time of Sale for such prospective purchaser.
(c) Underwriter Indemnification. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless each other Underwriter, its
affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (the "Non-Indemnifying Underwriter") from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted as such fees and expenses are incurred), joint
or several, that arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact or the omission or alleged omission
to state therein a material fact necessary in order to make the statements, in
the light of the circumstances under which they were made, not misleading
contained in any Free Writing Prospectus prepared by, or on behalf of, or used
or referred to by, such Indemnifying Underwriter or any member of its selling
group, in connection with the Certificates or in any revision or amendment
thereof or supplement thereto (with respect to any omission or alleged omission,
when read in conjunction with the Time of Sale Information) or (ii) the failure
of such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 8, and agrees to reimburse 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, claim, damage,
liability or action, except to the extent (1) the Non-Indemnifying Underwriters
are entitled to indemnification or contribution therefor from any Seller, any
Master Servicer, the Special Servicer, the Trustee or the Paying Agent, as
applicable, set forth in any Indemnification Agreement or (2) such losses,
claims, damages or liabilities are caused by a misstatement or omission
resulting from an error or omission in the Issuer Information which was not
corrected by Corrective Information subsequently supplied by the Depositor, any
Seller, any Master Servicer, the Special Servicer, the Trustee or the Paying
Agent, as applicable, to such Non-Indemnifying Underwriter no later than two
business days prior to the Time of Sale. This agreement will be in addition to
any liability that any Underwriter may otherwise have.
(d) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be sought pursuant to paragraph (a), (b) or (c) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying Person") in writing; provided
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under (a), (b) or (c) above, except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have to an Indemnified Person otherwise than under this Section 7. If any
such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person 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 Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors, officers and any
control persons of such Underwriter shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Depositor, its
directors, its officers who signed the Registration Statement and any control
persons of the Depositor shall be designated in writing by the Depositor. The
Indemnifying Person 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 Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(e) Contribution. If the indemnification provided for in subsections
(a), (b) and (c) above is unavailable to an Indemnified Person or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 each Underwriter on the
other from the offering of the Offered Certificates or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of the Depositor on the one hand and such
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Depositor on the one hand and each Underwriter on the other shall be deemed to
be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Depositor from the sale of the Offered Certificates
and the total underwriting discounts, commissions and other fees received by
such Underwriter in connection therewith bear to the aggregate offering price of
the Offered Certificates. The relative fault of the Depositor on the one hand
and each 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 such Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) Limitation on Liability. The Depositor and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (e) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(e) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the
Offered Certificates exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of any 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
8. Offering Communications; Free Writing Prospectuses.
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, no Underwriter shall convey
or deliver any written communication to any person in connection with the
initial offering of the Offered Certificates, unless such written communication
(1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a
prospectus satisfying the requirements of Rule 430B under the Securities Act or
(3) constitutes a Free Writing Prospectus. The Underwriter shall not convey or
deliver in connection with the initial offering of the Certificates any "ABS
informational and computational material," as defined in Item 1101(a) of
Regulation AB under the Securities Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the Securities Act.
(b) Each Underwriter shall deliver to the Depositor, no later than
two business days prior to the date of first use thereof, (a) any Underwriter
Free Writing Prospectus prepared by or on behalf of such Underwriter that
contains any "issuer information", as defined in Rule 433(h) under the
Securities Act(1) ("Issuer Information") (which the parties hereto agree
includes, without limitation, Seller's Information) and (b) any Free Writing
Prospectus or portion thereof that contains only a description of the final
terms of the Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS Informational and Computational Materials may
be delivered by the Underwriter to the Depositor not later than the later of (a)
two business days prior to the due date for filing of the Prospectus pursuant to
Rule 424(b) under the Securities Act or (b) the date of first use of such Free
Writing Prospectus.
(c) Each Underwriter represents and warrants to the Depositor that
the Free Writing Prospectuses to be furnished to the Depositor by the
Underwriter pursuant to Section 8(b) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to prospective
purchasers of Offered Certificates by the Underwriter in connection with its
offer and sale of the Offered Certificates.
(d) Each Underwriter represents and warrants to the Depositor that
each Free Writing Prospectus required to be provided by it to the Depositor
pursuant to Section 8(b), when read together with all Time of Sale Information,
did not, as of the Time of Sale, and will not as of the Closing Date, include
any untrue statement of a material fact or omit any material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading; provided however, that the Underwriter makes no
representation to the extent such misstatements or omissions were the result of
any inaccurate Issuer Information, which information was not corrected by
Corrective Information subsequently supplied by the Depositor or any Seller to
the Underwriter far enough in advance of the Time of Sale (in any event, no
later than two business days prior to the Time of Sale) so that the Underwriter
could have provided the Corrective Information to any prospective purchaser
prior to the Time of Sale for such prospective purchaser.
(e) The Depositor agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered
by the Underwriter to the Depositor pursuant to Section 8(b); and
(iii) Any Free Writing Prospectus for which the Depositor or
any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a
person unaffiliated with the Depositor or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating communications.
(f) Any Free Writing Prospectus required to be filed pursuant to
Section 8(e) by the Depositor shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus, except that:
(i) Any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of
the Certificates shall be filed by the Depositor with the Commission
within two days of the later of the date such final terms have been
established for all classes of Certificates and the date of first
use;
(ii) Any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material shall be filed by the Depositor with the Commission not
later than the later of the due date for filing the final Prospectus
relating to the Offered Certificates pursuant to Rule 424(b) under
the Securities Act or two business days after the first use of such
Free Writing Prospectus;
(iii) Any Free Writing Prospectus required to be filed
pursuant to Section 8(e)(iii) shall, if no payment has been made or
consideration has been given by or on behalf of the Depositor for
the Free Writing Prospectus or its dissemination, be filed by the
Depositor with the Commission not later than four business days
after the Depositor becomes aware of the publication, radio or
television broadcast or other dissemination of the Free Writing
Prospectus; and
(iv) The Depositor shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an
Underwriter or any other offering participant other than the
Depositor, if such information is included or incorporated by
reference in a prospectus or Free Writing Prospectus previously
filed with the Commission that relates to the offering of the
Certificates, or (B) any Free Writing Prospectus or portion thereof
that contains a description of the Certificates or the offering of
the Certificates which does not reflect the final terms thereof.
(g) Each Underwriter shall provide to the Depositor any Free Writing
Prospectus that is used or referred to by it and distributed by or on behalf of
such Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such Free
Writing Prospectus and the Depositor shall file such Free Writing Prospectus
with the Commission.
(h) Notwithstanding the provisions of Section 8(g), each Underwriter
shall provide to the Depositor, who shall then file with the Commission, any
Free Writing Prospectus for which the Underwriter or any person acting on its
behalf provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Depositor or any
other offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications and
for which no payment was made or consideration given by or on behalf of the
Depositor or any other offering participant, not later than four business days
after the Underwriter becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
(i) Notwithstanding the provisions of Sections 8(e) and 8(g),
neither the Depositor nor the Underwriter shall be required to file any Free
Writing Prospectus that does not contain substantive changes from or additions
to a Free Writing Prospectus previously filed with the Commission.
(j) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain a legend substantially in the
following form:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the depositor, the issuing trust and this offering. You may get
these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the
prospectus if you request it by calling 0-000-000-0000 or emailing
Xxxxxxx Xxxxxxxx at xxxxxxxx_xxxxxxx@xxxxxxxx.xxx.
(k) (1) In the event that the Depositor becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements contained therein, in light of the circumstances under which
they were made, not misleading, when read in conjunction with the Time of Sale
Information (such Issuer Free Writing Prospectus a "Defective Issuer Free
Writing Prospectus"), the Depositor shall notify the Underwriters thereof within
one business day after discovery and the Depositor shall, if requested by the
Underwriters, prepare and deliver to the Underwriters a Free Writing Prospectus
that corrects the material misstatement or omission in the Defective Issuer Free
Writing Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected
Issuer Free Writing Prospectus") and (2) in the event that any Underwriter
becomes aware that, as of the Time of Sale, any Underwriter Free Writing
Prospectus contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading, when
read in conjunction with the Time of Sale Information, (such Underwriter Free
Writing Prospectus, a "Defective Underwriter Free Writing Prospectus" and,
together with a Defective Issuer Free Writing Prospectus, a "Defective Free
Writing Prospectus"), such Underwriter shall notify the Depositor thereof within
one business day after discovery and shall, if requested by the Depositor:
(A) If the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus with Corrective Information that corrects the material
misstatement in or omission from the Defective Underwriter Free
Writing Prospectus (such corrected Underwriter Free Writing
Prospectus, a "Corrected Underwriter Free Writing Prospectus" and,
together with the Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(B) Deliver the Corrected Free Writing Prospectus to each
purchaser of an Offered Certificate which received the Defective
Free Writing Prospectus prior to entering into a contract of sale
with such purchaser;
(C) Notify such purchaser in a prompt fashion that any prior
contract of sale with such purchaser has been terminated, and of
such purchaser's rights as a result of termination of such
agreement;
(D) Provide such purchaser with an opportunity to enter into a
new contract of sale on the terms described in the Corrected Free
Writing Prospectus; and
(E) Comply with any other requirements for reformation of the
original contract of sale, as described in Section IV.2.c of the
Commission's Securities Offering Reform Release No. 33-8591.
(l) Each Underwriter covenants with the Depositor that after the
final Prospectus is available the Underwriter shall not distribute any written
information concerning the Offered Certificates that contains Issuer Information
to a prospective purchaser of Offered Certificates unless such information is
preceded or accompanied by the final Prospectus.
9. Effectiveness of Agreement. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
10. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Depositor, if 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 any
of the New York Stock Exchange or the over-the-counter market; (ii) a general
moratorium on commercial banking activities shall have been declared by federal
or New York State authorities; or (iii) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity
or crisis, either within or outside the United States, that in the judgment of
the Representative is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Offered
Certificates on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Prospectus.
11. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its
obligation to purchase the Offered Certificates that it has agreed to purchase
hereunder, the non-defaulting Underwriters may in their discretion arrange for
the purchase of such Offered Certificates by other persons satisfactory to the
Depositor on the terms contained in this Agreement. If, within 36 hours after
any such default by any Underwriter, the non-defaulting Underwriters do not
arrange for the purchase of such Offered Certificates, then the Depositor shall
be entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Underwriters to purchase such Offered
Certificates on such terms. If other persons become obligated or agree to
purchase the Offered Certificates of a defaulting Underwriter, either the
non-defaulting Underwriters or the Depositor may postpone the Closing Date for
up to five full business days in order to effect any changes that in the opinion
of counsel for the Depositor or counsel for the Underwriters may be necessary in
the Registration Statement and the Prospectus or in any other document or
arrangement, and the Depositor agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any
such changes. As used in this Agreement, the term "Underwriter" includes, for
all purposes of this Agreement unless the context otherwise requires, any person
not listed in Schedule I hereto that, pursuant to this Section 11, purchases
Offered Certificates that a defaulting Underwriter agreed but failed to
purchase.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Offered Certificates, then the Depositor shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder plus such
Underwriter's pro rata share (based on the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder) of the Offered
Certificates of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Offered Certificates, or if the Depositor shall not exercise the right described
in paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Underwriters or the Depositor, except that the
Depositor will continue to be liable for the payment of expenses as set forth in
Section 12 hereof and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Depositor or any non-defaulting Underwriter
for damages caused by its default.
12. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Depositor will pay or cause
to be paid all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Certificates and
any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement, the Time of Sale Information, any Issuer Free Writing Prospectus and
the Prospectus (including all exhibits, amendments and supplements thereto) and
the distribution thereof; (iii) the costs of reproducing and distributing this
Agreement and each of the Basic Documents; (iv) the fees and expenses of counsel
for the Underwriters; (v) the fees and expenses of the Depositor's counsel and
independent accountants; (vi) the fees and expenses incurred in connection with
the registration or qualification and determination of eligibility for
investment of the Offered Certificates under the laws of such jurisdictions as
the Representative may designate and the preparation, printing and distribution
of a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriters); (vii) any fees charged by rating agencies for rating the
Certificates; (viii) the fees and expenses of the Paying Agent, Trustee, the
Master Servicers and the Special Servicer (including related fees and expenses
of any counsel to such parties); (ix) all expenses and application fees incurred
in connection with any filing with the National Association of Securities
Dealers, Inc.; (x) all expenses incurred in connection with any "road show"
presentation to potential purchasers of Offered Certificates; and (xi) the costs
and expenses of the Depositor in connection with the purchase of the Mortgage
Loans.
(b) If (i) this Agreement is terminated pursuant to Section 10; (ii)
the Depositor for any reason fails to tender the Offered Certificates for
delivery to the Underwriters; or (iii) the Underwriters decline to purchase the
Offered Certificates for any reason permitted under this Agreement, the
Depositor agrees to reimburse the Underwriters for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably incurred
by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors. Nothing in this Agreement is intended or shall be
construed to give any other person, other than the affiliates, officers,
directors and controlling persons referred to in Section 7 and their respective
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein. No
purchaser of Offered Certificates from any Underwriter shall be deemed to be a
successor merely by reason of such purchase.
14. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Depositor and the Underwriters
contained in this Agreement or made by or on behalf of the Depositor or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Offered Certificates
and shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Depositor or the
Underwriters.
15. Underwriters' Information. The Depositor and the Underwriters
acknowledge and agree that the only information relating to any Underwriter that
has been furnished to the Depositor in writing by any Underwriter through the
Representative expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) and the Time of Sale
Information consists of the following: the second to last paragraph of the cover
page and the first sentence in the last paragraph of the cover page of the
Preliminary Free Writing Prospectus and the Prospectus Supplement; and the first
and third sentence of the third paragraph and the second sentence of the fourth
paragraph under the heading "Method of Distribution" in the Prospectus
Supplement.
16. Certain Defined Terms. For purposes of this Agreement, (a)
except where otherwise expressly provided, the term "affiliate" has the meaning
set forth in Rule 405 under the Securities Act; (b) the term "business day"
means any day other than a day on which banks are permitted or required to be
closed in New York City; and (c) the term "subsidiary" has the meaning set forth
in Rule 405 under the Securities Act.
17. Miscellaneous.
(a) Authority of the Representative. Any action by the Underwriters
hereunder may be taken by X.X. Xxxxxx Securities Inc. on behalf of the
Underwriters, and any such action taken by X.X. Xxxxxx Securities Inc. shall be
binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representative c/o X.X. Xxxxxx Securities
Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000);
Attention: CMBS Trading Desk. Notices to the Depositor shall be given to it at
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000); Attention: Commercial
Mortgage Backed Securities, in each case, with a copy to: X.X. Xxxxxx Xxxxx
Legal Department, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax:
000-000-0000), Attention: Xxxxxx Xxxxx, Managing Director & Associate General
Counsel.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts
(which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement. References herein to "Sections", Exhibits",
and "Schedules" without reference to a document or other source are designated
Sections, Exhibits, and Schedules of this Agreement.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP.
By /s/ Xxxxxxx X. Xxx
--------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
Accepted: December 21, 2006
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Underwriters listed in
Schedule I.
By /s/ Xxxxxxx X. Xxx
-----------------------------
Authorized Signatory
---------------------------
(1) Such definition of "issuer information" is further clarified by footnote 271
to SEC Release No. 33,8591. See 70 Fed. Reg. 44,722, at 44,751 (August 3, 2005).
SCHEDULE I
AGGREGATE INITIAL PRINCIPAL AMOUNT OR NOTIONAL AMOUNT
OF CERTIFICATES TO BE PURCHASED
Purchase Principal Purchase Principal
Principal Price of Amount of Class Price of Amount of Purchase Price
Amount of Class Class A-1 A-1S Class A-1S Class A-2 of Class A-2
Underwriter A-1 Certificates Certificates Certificates Certificates Certificates Certificates
----------- ---------------- ------------ ------------ ------------ ------------ ------------
X.X. Xxxxxx
Securities Inc. $46,023,200 99.99859% $103,792,800 100.49610% $111,821,600 98.99543%
UBS Securities LLC $11,505,800 99.99859% $25,948,200 100.49610% $27,955,400 98.99543%
Commerzbank Capital
Markets Corp. $0 N/A $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A $0 N/A $0 N/A
PNC Capital Markets
LLC $0 N/A $0 N/A $0 N/A
(TABLE CONTINUED)
Principal
Amount of Purchase Price
Class A-2S of Class A-2S
Underwriter Certificates Certificates
----------- ------------ ------------
X.X. Xxxxxx
Securities Inc. $300,000,000 100.49789%
UBS Securities LLC $75,000,000 100.49789%
Commerzbank Capital
Markets Corp. $0 N/A
IXIS Securities North
America Inc. $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A
PNC Capital Markets
LLC $0 N/A
Principal Purchase Price Purchase Principal Purchase Price
Amount of Class of Class Principal Price of Amount of of Class
A-2SFL A-2SFL Amount of Class Class A-3 Class A-3SFL A-3SFL
Underwriter Certificates Certificates A-3 Certificates Certificates Certificates Certificates
----------- ------------ ------------ ---------------- ------------ ------------ ------------
X.X. Xxxxxx
Securities Inc. $160,000,000 100.00000% $1,322,387,200 100.49618% $116,225,600 100.00000%
UBS Securities LLC $40,000,000 100.00000% $330,596,800 100.49618% $29,056,400 100.00000%
Commerzbank Capital
Markets Corp. $0 N/A $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A $0 N/A $0 N/A
PNC Capital Markets
LLC $0 N/A $0 N/A $0 N/A
(TABLE CONTINUED)
Principal
Amount of Purchase Price
Class A-1A of Class A-1A
Underwriter Certificates Certificates
----------- ------------ ------------
X.X. Xxxxxx
Securities Inc. $558,131,200 100.49336%
UBS Securities LLC $139,532,800 100.49336%
Commerzbank Capital
Markets Corp. $0 N/A
IXIS Securities North
America Inc. $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A
PNC Capital Markets
LLC $0 N/A
Purchase Purchase Principal
Notional Amount Price of Principal Price of Amount of Purchase Price
of Class X Class X Amount of Class Class A-M Class A-MS of Class A-MS
Underwriter Certificates Certificates A-M Certificates Certificates Certificates Certificates
----------- ------------ ------------ ---------------- ------------ ------------ ------------
X.X. Xxxxxx
Securities Inc. $3,883,403,436 3.49933% $266,194,400 100.49799% $97,145,600 100.49903%
UBS Securities LLC $970,850,859 3.49933% $72,798,600 100.49799% $24,286,400 100.49903%
Commerzbank Capital
Markets Corp. $0 N/A $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A $0 N/A $0 N/A
PNC Capital Markets
LLC $0 N/A $25,000,000 100.49799% $0 N/A
(TABLE CONTINUED)
Principal
Amount of Purchase Price
Class A-J of Class A-J
Underwriter Certificates Certificates
----------- ------------ ------------
X.X. Xxxxxx
Securities Inc. $254,795,200 100.49422%
UBS Securities LLC $63,698,800 100.49422%
Commerzbank Capital
Markets Corp. $0 N/A
IXIS Securities North
America Inc. $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A
PNC Capital Markets
LLC $0 N/A
Principal Purchase Purchase Principal
Amount of Class Price of Principal Price of Amount of Purchase Price
A-JS Class A-JS Amount of Class Class B Class B-S of Class B-S
Underwriter Certificates Certificates B Certificates Certificates Certificates Certificates
----------- ---------------- ------------ -------------- ------------ ------------ ------------
X.X. Xxxxxx
Securities Inc. $85,002,400 100.49643% $58,239,200 100.49350% $19,429,600 100.49902%
UBS Securities LLC $21,250,600 100.49643% $14,559,800 100.49350% $4,857,400 100.49902%
Commerzbank Capital
Markets Corp. $0 N/A $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A $0 N/A $0 N/A
PNC Capital Markets
LLC $0 N/A $0 N/A $0 N/A
(TABLE CONTINUED)
Principal
Amount of Purchase Price
Class C of Class C
Underwriter Certificates Certificates
----------- ------------ ------------
X.X. Xxxxxx
Securities Inc. $18,200,000 100.49651%
UBS Securities LLC $4,550,000 100.49651%
Commerzbank Capital
Markets Corp. $0 N/A
IXIS Securities North
America Inc. $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A
PNC Capital Markets
LLC $0 N/A
Purchase Principal Principal
Principal Price of Amount of Purchase Price Amount of Purchase Price
Amount of Class Class C-S Class D of Class D Class D-S of Class D-S
Underwriter C-S Certificates Certificates Certificates Certificates Certificates Certificates
----------- ---------------- ------------ ------------ ------------ ------------ ------------
X.X. Xxxxxx
Securities Inc. $6,071,200 100.49520% $40,039,200 100.49393% $13,357,600 100.49784%
UBS Securities LLC $1,517,800 100.49520% $10,009,800 100.49393% $3,339,400 100.49784%
Commerzbank Capital
Markets Corp. $0 N/A $0 N/A $0 N/A
IXIS Securities North
America Inc. $0 N/A $0 N/A $0 N/A
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx &
Xxxxx Incorporated $0 N/A $0 N/A $0 N/A
PNC Capital Markets
LLC $0 N/A $0 N/A $0 N/A
SCHEDULE II
CERTIFICATE RATINGS
Moody's Investors Standard & Poor's
Designation Service Inc. Rating Services Fitch, Inc.
---------------------- ----------------- ----------------- -----------
Class A-1 Aaa AAA AAA
Class A-1S Aaa AAA AAA
Class A-2 Aaa AAA AAA
Class A-2S Aaa AAA AAA
Class A-2SFL Aaa AAA AAA
Class A-3 Aaa AAA AAA
Class A-3SFL Aaa AAA AAA
Class A-1A Aaa AAA AAA
Class X Aaa AAA AAA
Class A-M Aaa AAA AAA
Class A-MS Aaa AAA AAA
Class A-J Aaa AAA AAA
Class A-JS Aaa AAA AAA
Class B Aa2 AA AA
Class B-S Aa2 AA AA
Class C Aa3 AA- AA-
Class C-S Aa2 AA- AA-
Class D A2 A A
Class D-S A2 A A
EXHIBIT 1
None.
