EXECUTION VERSION
XXXXXXX XXXXX MORTGAGE TRUST 2008-C1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2008-C1
UNDERWRITING AGREEMENT
May 21, 2008
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
As Representative of the several
Underwriters listed on Schedule I hereto
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware corporation (the
"Depositor"), proposes to cause the issuance of, and to sell to the several
Underwriters listed on Schedule I (together, the "Underwriters"), for whom
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated is acting as representative
(in such capacity, the "Representative"), the Commercial Mortgage Pass-Through
Certificates identified in Schedule I hereto (the "Certificates") pursuant to
this Underwriting Agreement, dated May 21, 2008 (this "Agreement"), between the
Depositor and the Underwriters. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Banc of America Securities LLC are acting as joint bookrunning
managers with respect to the offering of the Certificates (in such capacity, the
"Lead Underwriters") in the following manner: Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated is acting as sole bookrunning manager with respect to 74.4%
of each class of the Certificates, and Banc of America Securities LLC is acting
as sole bookrunning manager with respect to 25.6% of each class of Certificates.
Citigroup Global Markets Inc. and PNC Capital Markets LLC will act as
co-managers. The Certificates will evidence beneficial ownership interests in a
trust fund (the "Trust Fund") to be formed by the Depositor and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily, commercial
and manufactured housing community mortgage loans (the "Mortgage Loans").
Certain of the Mortgage Loans (the "Merrill Mortgage Loans") will be
acquired by the Depositor from Xxxxxxx Xxxxx Mortgage Lending, Inc. ("Merrill")
pursuant to the mortgage loan purchase agreement, dated as of May 21, 2008, (the
"Merrill Mortgage Loan Purchase Agreement") between the Depositor and Merrill.
Certain of the Mortgage Loans (the "Bank of America Mortgage Loans") will be
acquired by the Depositor from Bank of America, National Association ("Bank of
America") pursuant to the mortgage loan purchase agreement, dated as of May 21,
2008, (the "Bank of America Mortgage Loan Purchase Agreement") between Depositor
and Bank of America. Certain of the Mortgage Loans (the "Dexia Mortgage Loans")
will be acquired by the Depositor from Dexia Real Estate Capital Markets
("Dexia")
pursuant to the mortgage loan purchase agreement, dated as of May 21, 2008 (the
"Dexia Mortgage Loan Purchase Agreement") between the Depositor and Dexia.
Certain of the Mortgage Loans (the "PNC Loans") will be acquired by the
Depositor from PNC Bank, National Association ("PNC") pursuant to the mortgage
loan purchase agreement, dated as of May 21, 2008 (the "PNC Mortgage Loan
Purchase Agreement") between the Depositor and PNC. Certain of the Mortgage
Loans (the "GECC Mortgage Loans") will be acquired by the Depositor from General
Electric Capital Corporation ("GECC") pursuant to the mortgage loan purchase
agreement, dated as of May 21, 2008 (the "GECC Mortgage Loan Purchase
Agreement") between the Depositor and GECC. Certain of the Mortgage Loans (the
"Capmark Loans") will be acquired by the Depositor from Capmark Finance Inc.
("Capmark") pursuant to the mortgage loan purchase agreement, dated as of May
21, 2008 (the "Capmark Mortgage Loan Purchase Agreement" and, together with the
Merrill Mortgage Loan Purchase Agreement, the Bank of America Mortgage Loan
Purchase Agreement, the Dexia Mortgage Loan Purchase Agreement, the PNC Mortgage
Loan Purchase Agreement and the GECC Mortgage Loan Purchase Agreement, the
"Mortgage Loan Purchase Agreements")
The Trust is to be created and the Certificates are to be issued under
a pooling and servicing agreement, dated as of June 1, 2008 (the "Pooling and
Servicing Agreement"), between the Depositor, Bank of America, National
Association, Midland Loan Services, Inc. and Wachovia Bank, National
Association, as master servicers, LaSalle Bank National Association, as
certificate administrator and custodian, Midland Loan Services, Inc., as special
servicer, and U.S. Bank National Association, as trustee.
Capitalized terms used herein, but not otherwise defined herein shall
have the meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-142235) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The
Depositor proposes to file with the Commission pursuant to Rule 424(b) under the
1933 Act a supplement to the form of prospectus included in such registration
statement relating to the Certificates and the plan of distribution thereof.
Such registration statement, including the exhibits thereto, and information
that is contained in the Prospectus (as defined below) and is deemed to be part
of and included in such registration statement as it may have been amended or
supplemented at the date of the Prospectus, is hereinafter referred to as the
"Registration Statement"; the prospectus first required to be filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
1933 Act, is hereinafter referred to as the "Base Prospectus"; such supplement
to the Base Prospectus relating to the Certificates, in the form first required
to be filed to satisfy the condition set forth in Rule 172(c) and pursuant to
Rule 424(b) under the 1933 Act (including the Base Prospectus as so
supplemented) is hereinafter referred to as the "Prospectus Supplement"; and the
Base Prospectus and the Prospectus Supplement, together, are hereinafter
referred to as the "Prospectus". A "free writing prospectus" (as defined
pursuant to Rule 405 under the 0000 Xxx) relating to the Certificates is
hereinafter referred to as a "Free Writing Prospectus".
At or prior to the time when sales to purchasers of the Certificates
were first made, which was approximately 12:45 p.m. on May 21, 2008 (the "Time
of Sale"), the Depositor
-2-
had prepared or caused the preparation of the following information
(collectively, the "Time of Sale Information"): the Depositor's Free Writing
Prospectus dated May 16, 2008 (the "Offering Prospectus") (the cover page of
which is attached hereto as Annex A); the Depositor's Free Writing Prospectus
dated May 20, 2008 and the Depositor's Free Writing Prospectus dated May 21,
2008 (the cover page of each of which is attached hereto as Annex B); the
Depositor's prospectus dated May 10, 2007, relating to the Certificates and
previously filed as part of the Registration Statement; the collateral and
structural term sheet dated May 15, 2008 relating to the Certificates (the first
two pages of which are attached hereto as Annex C); and the pricing information
annex attached hereto as Schedule I. If, subsequent to the date of this
Agreement, the Depositor and the Lead Underwriters determine 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 terminate their
old purchase contracts and enter into new purchase contracts with one or more
purchasers of the Certificates, then "Time of Sale Information" as to any such
purchaser will refer to the information conveyed to such purchaser at the time
of entry into the first such new purchase contract, including any information
that corrects such material misstatements or omissions ("Corrective
Information") and "Time of Sale" as to such purchaser will refer to the time and
date on which such new purchase contract was entered into.
Section 1. Representations and Warranties. (a) The Depositor
represents and warrants to the Underwriters as follows:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending or, to the Depositor's
knowledge, threatened by the Commission; the Registration Statement as of
its effective date or deemed effective date pursuant to Rule 430B under the
1933 Act (the "Effective Date"), and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder (the "1933 Act Regulations"); and the information in the
Registration Statement, as of the Effective Date, did not contain any
untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and the information in the Prospectus, as of the
date of the Prospectus Supplement, did not, and as of the Closing Date (as
hereinafter defined) will not, contain an untrue statement of a material
fact and did not and will not omit to state a material fact necessary in
order to make the information therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Depositor makes no representations, warranties or agreements as to (A) the
information furnished in writing to the Depositor by such Underwriter
through the Lead Underwriters specifically for use in connection with the
preparation of the Time of Sale Information and the Prospectus or any
revision or amendment thereof or supplement thereto and other information
in conformity therewith and in reliance thereon (the "Underwriter
Information"), (B) any information for which the Mortgage Loan Sellers are
obligated to indemnify the Underwriters under the Indemnification
Agreement, dated as of May 21, 2008, between the respective Mortgage Loan
Sellers, the Depositor and the Underwriters (the "Mortgage Loan Seller
Information") or (C) any information for which the Trustee, the Certificate
Administrator, any of the master servicers or the special servicers is
-3-
obligated to indemnify the Underwriters, each under a separate
indemnification agreement dated as of May 21, 2008 (the
"Trustee/Certificate Administrator/Servicer Information"); and provided,
further, that the Depositor makes no representations, warranties or
agreements regarding untrue statements or omissions in the portions of the
Prospectus Supplement under the heading "Yield and Maturity Considerations"
that arise out of or are based upon untrue statements or omissions in the
Mortgage Loan Seller Information. The Underwriter Information in the Time
of Sale Information and the Prospectus Supplement shall consist of: (i) the
first three sentences of the paragraph immediately above the bolded names
of the Underwriters on the cover page of the Offering Prospectus and the
Prospectus Supplement, respectively; and (ii) the second, fourth and eighth
paragraphs and the first sentence of the sixth paragraph of the section of
the Offering Prospectus and the Prospectus Supplement, respectively,
entitled "Method of Distribution"; provided that with respect to the eighth
paragraph of the section of the Offering Prospectus and the Prospectus
Supplement entitled, "Method of Distribution," any Underwriter that is
named in such paragraph shall be deemed to have only provided information
contained in such paragraph that relates to itself and/or its affiliates,
and any Underwriter that is not named in such paragraph shall not be deemed
to have provided information in such paragraph.
(ii) 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 (A) any Underwriter Information contained in
or omitted from the Time of Sale Information and/or any information that is
consistent with such Underwriter Information, (B) any Mortgage Loan Seller
Information contained in or omitted from such Time of Sale Information or
(C) any Trustee/Certificate Administrator/Servicer Information contained in
or omitted from such Time of Sale Information. The parties acknowledge that
none of the Underwriters has furnished any Underwriter Information to the
Depositor expressly for use in the Time of Sale Information (other than the
Offering Prospectus).
(iii) 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 0000 Xxx) that constitutes an offer to sell
or solicitation of an offer to buy the Certificates other than (A) the
Prospectus, (B) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (C) the
Time of Sale Information and (D) each other written communication of the
Depositor or its agents and representatives approved by the Representative
either in writing in advance or in any other manner mutually agreed to by
the Representative and the Depositor (each such communication referred to
in clause (C) and this clause (D) constituting an "issuer free writing
prospectus", as defined in Rule 433(h) under the 1933 Act, being referred
to as an "Issuer Free Writing Prospectus"). Each such Issuer Free Writing
Prospectus complied or, if used after the date hereof, will comply, in all
material respects with the 1933 Act and the rules and regulations
promulgated thereunder, has been filed or will be filed in
-4-
accordance with Section 4 (to the extent required thereby). Each such
Issuer Free Writing Prospectus referred to in clause (D) of the second
preceding sentence 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 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 (A) any
Underwriter Information contained in or omitted from the Prospectus or the
Time of Sale Information and/or any information that is consistent with
such Underwriter Information, (B) any Mortgage Loan Seller Information
contained in or omitted from any such Issuer Free Writing Prospectus or (C)
any Trustee/Certificate Administrator/Servicer Information contained in or
omitted from any such Issuer Free Writing Prospectus. The parties
acknowledge that none of the Underwriters has furnished any Underwriter
Information to the Depositor expressly for use in any Issuer Free Writing
Prospectus referred to in clause (D) of the third preceding sentence.
(iv) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
is 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, with corporate power and authority to enter into and perform
its obligations under this Agreement, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements.
(v) The execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements
by the Depositor and the consummation of the transactions contemplated
herein and therein by the Depositor and compliance by the Depositor with
its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and will not (A) contravene any provision of the
certificate of incorporation or by-laws of the Depositor or applicable law
or (B) conflict with or constitute a breach of or default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Depositor pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Depositor is a party or by which it may be bound or to which any of the
property or assets of the Depositor is subject, which conflict, breach,
default, lien, charge or encumbrance is reasonably likely to materially and
adversely affect the Depositor's ability to perform its obligations under
this Agreement, the Pooling and Servicing Agreement or the Mortgage Loan
Purchase Agreements.
(vi) The Certificates have been duly authorized for issuance and sale
(or will have been so authorized prior to the issuance thereof) pursuant to
this Agreement and the Pooling and Servicing Agreement. When issued,
authenticated and delivered pursuant to the provisions of this Agreement
and of the Pooling and Servicing Agreement against payment of the
consideration therefor in accordance with this Agreement, the Certificates
will be duly and validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement, except as the
enforceability thereof may be limited by the effect of (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, and (B)
-5-
general principles of equity, whether enforcement is sought in a proceeding
in equity or at law. The Certificates, the Pooling and Servicing Agreement
and the Mortgage Loan Purchase Agreements conform in all material respects
to all statements relating thereto contained in the Prospectus.
(vii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
offering, issuance or sale of the Certificates hereunder, except such as
have been, or as of the Closing Date will have been, obtained or such as
may otherwise be required under applicable state securities laws in
connection with the purchase and offer and sale of the Certificates by the
Underwriters and any recordation of the respective assignments of the
Mortgage Loans to the Trustee pursuant to the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements that have not yet been
completed.
(viii) This Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and Servicing Agreement have been (or as of the Closing Date will
be) duly authorized, executed and delivered by the Depositor. This
Agreement and the Mortgage Loan Purchase Agreements and the Pooling and
Servicing Agreement constitute (or as of the Closing Date will constitute)
a legal, valid and binding agreement enforceable against the Depositor in
accordance with its terms, except as such enforceability may be limited by
the effect of (A) bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws affecting the enforcement of the rights of
creditors generally, (B) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law, and (C) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement that purport or are construed to provide indemnification
from securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause
to be conveyed to the Trustee, all of the Depositor's right, title and
interest in and to the Mortgage Loans, free and clear of any lien,
mortgage, pledge, charge, encumbrance, adverse claim or other security
interest (collectively "Liens") granted by or imposed upon the Depositor,
(B) will not have assigned to any other person any of its right, title or
interest in the Mortgage Loans or in the Pooling and Servicing Agreement or
the Certificates, and (C) will have the power and authority to transfer or
cause to be transferred its right, title and interest in the Mortgage Loans
to the Trustee and to sell the Certificates to the Underwriters. Upon
execution and delivery of the Pooling and Servicing Agreement by the
Trustee, the Trustee will have acquired ownership of all of the Depositor's
right, title and interest in and to the Mortgage Loans except to the extent
disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens
granted by or imposed upon the Depositor.
(x) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause
the Depositor or the Trust Fund to
-6-
be, subject to registration or regulation as an "investment company" under
the Investment Company Act of 1940, as amended (the "1940 Act").
(xi) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale
of the Certificates to the Underwriters pursuant to this Agreement as a
sale of the interest in the Mortgage Loans evidenced by the Certificates.
The consideration received by the Depositor upon the sale of the
Certificates to the Underwriters will constitute at least reasonably
equivalent value and fair consideration for the Certificates. The Depositor
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Certificates to the Underwriters. The
Depositor is not selling the Certificates to the Underwriters with any
intent to hinder, delay or defraud any of the creditors of the Depositor.
(xii) The Depositor has not relied on the Underwriters for any tax,
regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Depositor
acknowledges and agrees that (A) the terms of this Agreement and the
offering (including the price of the Certificates) were negotiated at arm's
length between sophisticated parties represented by counsel; (B) no
fiduciary, advisory or agency relationship between the Depositor and the
Underwriters has been created as a result of any of the transactions
contemplated by this Agreement, irrespective of whether any Underwriter has
advised or is advising the Depositor on other matters; (C) the
Underwriters' obligations to the Depositor in respect of the offering, and
the purchase and sale, of the Certificates are set forth in this Agreement
in their entirety; and (D) it has obtained such legal, tax, accounting and
other advice as it deems appropriate with respect to this Agreement and the
transactions contemplated hereby and any other activities undertaken in
connection therewith, and it is not relying on the Underwriters with
respect to any such matters. The Depositor agrees that it will not claim
that the Underwriters, or any of them, has rendered advisory services of
any nature or respect, or owes a fiduciary or similar duty to the
Depositor, in connection with such transaction or the process leading
thereto.
(xiii) The Trust Fund (other than those portions specified in the
Pooling and Servicing Agreement) will qualify as two separate real estate
mortgage investment conduits (each, a "REMIC") for federal income tax
purposes pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code"); the Regular Certificates will constitute "regular
interests" in a REMIC; and the Class R-I and R-II Certificates will
evidence the sole class of "residual interests" in each related REMIC.
(xiv) There are no legal or governmental proceedings pending or, to
the knowledge of the Depositor, threatened to which the Depositor is a
party or to which any of the properties of the Depositor are subject that
are required to be described in the Prospectus or the Time of Sale
Information or necessary in order to make the statements therein in the
light of the circumstances under which they were made, not misleading and
that are not so described, nor are there any contracts or other documents
to which the Depositor is a party or to which the
-7-
Depositor or any of the properties of the Depositor are subject that are
required to be described in the Prospectus.
(xv) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I
hereto by the nationally recognized statistical rating organizations
identified in Schedule I hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling
and Servicing Agreement and the Certificates payable by the Depositor
(other than income taxes) have been paid or will be paid at or prior to the
Closing Date.
(xvii) None of the Depositor or any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first bona
fide offer of the Certificates is made (within the meaning of Rule
164(h)(2) under the 0000 Xxx) will not be, an "ineligible issuer," as
defined in Rule 405 under the 1933 Act.
(xix) Other than as set forth or contemplated in the Prospectus, since
the date as of which information is given in the Prospectus, there has not
been any material adverse change or any development involving a prospective
material adverse change, in or affecting the business, prospects,
management, financial position, stockholders' equity or results of
operations of the Depositor.
(xx) The Depositor is not (A) in violation of its charter, by-laws or
similar organizational documents; (B) 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 (C) 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, except, in the case of clauses (B) and (C) above, for any such
default or violation that would not, individually or in the aggregate, have
a material adverse effect.
(b) Each Underwriter represents and warrants to the Depositor that, as
of the date hereof and as of the Closing Date, such Underwriter has complied
with all of its obligations hereunder.
Section 2. Purchase and Sale. Subject to the terms and conditions
herein set forth and in reliance upon the representations and warranties herein
contained, the Depositor shall sell to the Underwriters, and each Underwriter
shall, severally and not jointly, purchase from the Depositor, at the related
purchase price set forth on Schedule I hereto, Certificates of each class
thereof having an actual or notional amount as set forth on Schedule I hereto
opposite
-8-
their names plus, if applicable, accrued interest on the actual principal amount
or notional amount thereof at the applicable Pass-Through Rate from June 1, 2008
to but excluding the Closing Date (defined below).
Section 3. Delivery and Payment. Payment of the aggregate purchase
price for, and delivery of, the Certificates shall be made at 10:00 a.m. New
York City time on June 12, 2008, which date and time may be postponed by
agreement between the Underwriters and the Depositor (such time and date of
payment and delivery, the "Closing Date"). Payment shall be made to the
Depositor by the Underwriters of the purchase prices of the Certificates as set
forth in Schedule I (together with the interest accrued thereon as contemplated
by Section 2 hereof) in immediately available Federal funds wired to such bank
as may be designated by the Depositor, against delivery of the Certificates.
Delivery of the Certificates will be made in book-entry form through the
facilities of The Depository Trust Company ("DTC"). Each class of Certificates
will be represented by one or more definitive global Certificates to be
deposited by or on behalf of the Depositor with DTC or the Trustee. The
Certificates will be made available for examination by the Underwriters not
later than 10:00 a.m. New York City time on the last business day prior to the
Closing Date. The closing of the transactions contemplated hereby shall be made
at the offices of Xxxxxxx Xxxxxxxx & Wood LLP, Two World Financial Center, Xxx
Xxxx, XX 00000, or at such other place as shall be agreed upon by the
Underwriters and the Depositor.
Section 4. Offering by Underwriters; Free Writing Prospectuses. (a) It
is understood that the Underwriters propose to offer the Certificates for sale
as set forth in the Prospectus. It is further understood that the Depositor, in
reliance upon Policy Statement 105, has not and will not file an offering
statement pursuant to Section 352-e of the General Business Law of the State of
New York with respect to the Certificates. Each Underwriter severally and not
jointly therefore agrees that sales of the Certificates made by such Underwriter
in and from the State of New York will be made only to institutional investors
within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses, or portions thereof, subject to the following conditions (to which
such conditions each Underwriter agrees (provided that no Underwriter shall be
responsible for any breach of the following conditions by any other
Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the Underwriters
shall not convey or deliver, and hereby represent that they have not
conveyed or delivered, any written communication to any person in
connection with the initial offering of the Certificates, unless such
written communication (A) is made in reliance on Rule 134 under the 1933
Act, (B) constitutes a prospectus satisfying the requirements of Rule 430B
under the 1933 Act, or (C) constitutes Time of Sale Information or a Free
Writing Prospectus that does not constitute (but is in all material
respects consistent with) Time of Sale Information. The Underwriters shall
not convey or deliver in connection with the initial offering of the
Certificates any "computational materials" or "ABS term sheets" in reliance
on the "Xxxxxx/PSA" no-action letters or any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the 1933
-9-
Act ("ABS Informational and Computational Material"), in reliance upon
Rules 167 and 426 under the 1933 Act.
(ii) Each Underwriter shall deliver, and hereby represents and
warrants that it has delivered, to the Depositor, no later than two
business days prior to the date of first use thereof or such later date as
may be agreed to by the Depositor, (A) any Free Writing Prospectus that was
prepared by or on behalf of such Underwriter (an "Underwriter Free Writing
Prospectus") and that contains or contained any "issuer information," as
defined in Rule 433(h) under the 1933 Act and footnote 271 of the
Commission's Securities Offering Reform Release No. 33-8591 ("Issuer
Information") (which the parties hereto agree includes, without limitation,
Mortgage Loan Seller Information), and (B) any Free Writing Prospectus or
portion thereof prepared by or on behalf of such Underwriter that contains
or contained only a description of the final terms of the Certificates,
provided that an Underwriter shall not be required to deliver to the
Depositor any Bloomberg screen email transmission that constitutes a Free
Writing Prospectus that was delivered to an investor pursuant to the
foregoing provision, unless such Free Writing Prospectus contains
information that is not included in a prospectus or Free Writing Prospectus
previously filed that relates to the offering of the Certificates in which
case such Underwriter must deliver a copy thereof to the Depositor on the
same date as delivery to the investor. Notwithstanding the foregoing, any
Free Writing Prospectus that contains only ABS Informational and
Computational Materials may be delivered by an 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 1933 Act or such
later date as may be agreed to by the Depositor or (B) the date of first
use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor that
the Free Writing Prospectuses furnished or to be furnished to the Depositor
by such Underwriter pursuant to or as contemplated by Section 4(b)(ii) will
constitute all Free Writing Prospectuses of the type described therein that
were furnished to prospective investors by such Underwriter in connection
with its offer and sale of the Certificates.
(iv) Each Underwriter represents and warrants to the Depositor that
each Free Writing Prospectus provided or required to be provided by it to
the Depositor pursuant to or as contemplated by Section 4(b)(ii) 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 (when read in conjunction with the
Time of Sale Information), in light of the circumstances under which they
were made, not misleading; provided however, that such 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 Mortgage Loan Seller to such Underwriter within a reasonable period
of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
-10-
(B) Any Free Writing Prospectus or portion thereof delivered by
any Underwriter to the Depositor pursuant to Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which the Depositor or any
person (exclusive of an Underwriter) 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.
Notwithstanding the foregoing, the Depositor shall not be
required to file (1) Issuer Information contained in any Underwriter
Free Writing Prospectus or Free Writing Prospectus of 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 (2) 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.
The Depositor is required to file such Free Writing
Prospectuses with the Commission in electronic format and the
Underwriters shall use reasonable efforts to provide to the Depositor
such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF,
except to the extent that the Depositor, in its sole discretion,
waives such requirements,
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b)(v) by the Depositor shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that (subject to compliance by the Underwriters with Section 4(b)(ii)
hereof in cases where an Underwriter must deliver the subject Free Writing
Prospectus or portion thereof to the Depositor):
(A) 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;
(B) 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
Certificates pursuant to Rule 424(b) under the 1933 Act or two
business days after the first use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b)(v)(C) shall, if no payment has been made or consideration
has been
-11-
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.
(vii) Each Underwriter shall file with the Commission 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.
(viii) Notwithstanding the provisions of Section 4(b)(vii), each
Underwriter shall file with the Commission any Free Writing Prospectus for
which such 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 such Underwriter becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v) and 4(b)(vii),
neither the Depositor nor any 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, and no Underwriter shall be required to file any Free Writing
Prospectus to the extent that the information contained therein is included
in a prospectus or Free Writing Prospectus previously filed that relates to
the offering of the Certificates.
(x) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the 1933
Act:
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 entity, 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 toll-free 0-000-000-0000.
(xi) The Depositor and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required to be
filed pursuant to this Section 4 for a period of three years following the
initial bona fide offering of the Certificates.
-12-
(xii) (A) If the Depositor becomes aware that, as of the Time of Sale,
any Issuer Free Writing Prospectus delivered to an investor in any
Certificate contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements contained
therein (when read in conjunction with the Time of Sale Information), in
light of the circumstances under which they were made, not misleading (a
"Defective Issuer Free Writing Prospectus"), the Depositor shall notify the
Underwriters of such untrue statement or omission 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").
(B) If any Underwriter becomes aware that, as of the Time of
Sale, any Underwriter Free Writing Prospectus delivered to an investor
in any Certificates contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with the Time
of Sale Information), in light of the circumstances under which they
were made, not misleading (together with a Defective Issuer Free
Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Depositor of such untrue statement or
omission within one business day after discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or omission
from the Defective Free Writing Prospectus (together with a
Corrected Issuer Free Writing Prospectus, a "Corrected Free
Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus
prior to entering into a contract of sale with such investor;
(3) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated, and
of the investor's rights as a result of termination of such
agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for reformation of
the original contract of sale with such investor, as described in
Section IV.A.2.c of Commission's Securities Offering Reform
Release No. 33-8591.
-13-
(D) If the Defective Free Writing Prospectus was an Issuer Free
Writing Prospectus, and the Underwriters shall in good faith incur any
costs to an investor in connection with the reformation of the
contract of sale with the investor, the Depositor agrees to reimburse
the Underwriters for such costs; provided that, before incurring such
costs, the Underwriters first permit the Depositor access to the
applicable investor and an opportunity to attempt to mitigate such
costs through direct negotiation with such investor.
(xiii) Each Underwriter covenants with the Depositor that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Certificates to a prospective investor unless
such information is preceded or accompanied by the Prospectus other than
any Bloomberg screen email transmission that constitutes a Free Writing
Prospectus that is subject to the proviso in Section 4(b)(ii).
(c) Each Underwriter further represents and warrants that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000) received by it in connection with
the issue or sale of the Certificates in circumstances in which Section
21(1) of the Financial Services and Markets Xxx 0000 does not apply to the
Depositor; and
(ii) it has complied and will comply with all applicable provisions of
the Financial Services and Markets Xxx 0000 with respect to anything done
by it in relation to the Certificates in, from or otherwise involving the
United Kingdom.
(iii) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter represents and agrees with the Depositor that
with effect from and including the date on which the Prospectus Directive
is implemented in that Relevant Member State (the "Relevant Implementation
Date") such Underwriter has not made and will not make an offer of the
Certificates to the public in that Relevant Member State other than:
(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 (1) an average of at least 250
employees during the last financial year and (2) a total balance sheet
of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts;
(C) to fewer than 100 natural or legal persons (other than
qualified investors as defined in the Prospectus Directive) subject to
obtaining the prior consent of the underwriters; or
(D) in any other circumstances falling within Article 3(2) of the
Prospectus Directive,
-14-
provided that no such offer of the Certificates shall require the
Depositor or any Underwriter to publish a prospectus pursuant to
Article 3 of the Prospectus Directive or supplement a prospectus
pursuant to Article 16 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
the Certificates to the public" in relation to any of the 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 Certificates to be offered so as to enable an investor to decide
to purchase or subscribe the 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.
(d) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated represents and
warrants to the Depositor that it has the authority to act as Representative of
the Underwriters and to bind the Underwriters hereto.
Section 5. Covenants of the Depositor. The Depositor covenants with
each Underwriter as follows:
(a) The Depositor will give each of the Underwriters notice of its
intention to prepare, use, authorize, approve, refer to or file any Issuer Free
Writing Prospectus or to file or prepare (i) any amendment to the Registration
Statement at any time prior to the Closing Date or (ii) any amendment or
supplement to the Prospectus (including any revised prospectus that the
Depositor proposes for use by the Underwriters in connection with the offering
of the Certificates and that differs from the prospectus on file at the
Commission at the time the Registration Statement became effective, whether or
not such revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations) at any time during the period when a prospectus
relating to the Certificates is required to be delivered under the 1933 Act, and
the Depositor will furnish the Underwriters with copies of any such Issuer Free
Writing Prospectus, amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or
file any such amendment or supplement or use any such prospectus to which the
Underwriters shall reasonably object.
(b) The Depositor will promptly give the Lead Underwriters notice of
(i) any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information relating to the
Certificates, (ii) any written notification received by the Depositor of
suspension of qualification of the Certificates for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (iii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or, to the knowledge of the Depositor,
threatening any proceeding for that purpose. The Depositor will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(c) The Depositor will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by means
reasonably
-15-
calculated to result in filing with the Commission pursuant to said rule.
Subject to Section 4, the Depositor will cause each Issuer Free Writing
Prospectus to be transmitted for filing pursuant to Rule 433 under the 1933 Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule.
(d) The Depositor will furnish to the Lead Underwriters, from time to
time during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus and each Free Writing Prospectus (as amended or supplemented) as the
Lead Underwriters may reasonably request for the purposes contemplated by the
1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act") or
the respective applicable rules and regulations of the Commission thereunder.
(e) If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser of Certificates, if the Depositor has actual
knowledge of the event, and if the event is not otherwise disclosed in a filing
to the Registration Statement pursuant to Section 13 or 15(d) of the 1934 Act,
the Depositor will forthwith amend or supplement the Prospectus so that, as so
amended or supplemented, the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Depositor will furnish to the
Lead Underwriters a reasonable number of copies of such amendment or supplement.
(f) The Depositor will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Lead Underwriters may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of Certificates; provided, however, that
the Depositor shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general consent to
service of process in any jurisdiction.
(g) The Depositor will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus under "Use of
Proceeds".
(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Depositor will pay or cause to be paid all expenses incident to
the performance of the obligations of the Depositor under this Agreement,
including, without limitation, (i) the fees, disbursements and expenses of the
Depositor's counsel and accountants in connection with the purchase of the
Mortgage Loans and the issuance and sale of the Certificates, (ii) all fees and
expenses incurred in connection with the registration and delivery of the
Certificates under the 1933 Act, and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, the Time of Sale
Information, any Issuer Free Writing Prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities specified above, (iii) all costs
-16-
and expenses related to the transfer and delivery of the Certificates to the
Underwriters, including any transfer or other taxes payable thereon, (iv) the
costs of printing or producing any "blue sky" memorandum in connection with the
offer and sale of the Certificates under state securities laws and all expenses
in connection with the qualification of the Certificates for the offer and sale
under state securities laws as provided in Section 5(f), including filing fees
and the reasonable fees and disbursements of counsel for the Lead Underwriters
in connection with such qualification and in connection with the "blue sky"
memorandum, (v) the cost of printing the Certificates, (vi) the upfront costs
and charges of any transfer agent, registrar or depository, (vii) the fees and
expenses of the rating agencies incurred in connection with the issuance and
sale of the Certificates and (viii) all other costs and expenses incident to the
performance of the obligations of the Depositor hereunder for which provision is
not otherwise made in this Section. Except as herein provided in Sections 7 and
10, the Underwriters shall be responsible for the payment of all costs and
expenses incurred by them, including, without limitation, (i) the fees and
disbursements of counsel of the Underwriters and (ii) such additional costs
arising out of any Free Writing Prospectuses prepared by or on behalf of the
Underwriters and the filing of such materials, if required, with the Commission.
(i) The Depositor shall obtain a letter from Ernst & Young LLP,
certified public accountants, satisfactory in form and substance to the
Depositor and the Lead Underwriters, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the
Depositor and the Lead Underwriters, as a result of which they have determined
that the information included in the Time of Sale Information that the
accountants have examined in accordance with such agreed upon procedures, is
accurate except as to such matters that are not deemed by the Depositor or the
Lead Underwriters to be material.
Section 6. Conditions of Underwriters' Obligations. Each Underwriter's
obligation to purchase the Certificates allocated to it as set forth on Schedule
I hereto shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Depositor contained herein as
of the date hereof and as of the Closing Date, to the performance by the
Depositor in all material respects of its obligations hereunder and to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Depositor's knowledge, threatened by the Commission and the
Prospectus Supplement and each Free Writing Prospectus required to be filed by
the Depositor pursuant to Section 4(b) shall have been filed or transmitted for
filing by means reasonably calculated to result in a filing with the Commission
pursuant to Rule 424(b) under the 1933 Act or Rule 433 under the 1933 Act, as
applicable.
(b) On the Closing Date, the Lead Underwriters shall have received:
(i) One or more opinions, dated the Closing Date and addressed to the
Underwriters, of counsel to the Depositor, in form and substance
satisfactory to such Lead Underwriters, substantially to the effect that:
-17-
(A) The Depositor is a corporation in good standing under the
laws of the State of Delaware.
(B) The Depositor has corporate power and authority to enter into
and perform its obligations under this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements.
(C) Each of this Agreement and the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements have been duly
authorized, executed and delivered by the Depositor. Upon due
authorization, execution and delivery by the other parties thereto,
the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements will constitute a valid, legal and binding agreement of the
Depositor, enforceable against the Depositor in accordance with its
terms, except as enforceability may be limited by (1) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the enforcement of the rights of
creditors generally, (2) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law and (3) such
other exceptions as are reasonably acceptable to the Lead
Underwriters.
(D) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this Agreement,
will be entitled to the benefits of the Pooling and Servicing
Agreement.
(E) The Registration Statement was declared effective under the
1933 Act and, to the best of such counsel's knowledge and information,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and not withdrawn, and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(F) At the time it was declared effective under the 1933 Act, the
Registration Statement (other than any financial, numerical,
accounting or statistical information included or incorporated by
reference therein, as to which no opinion need be rendered) complied
as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(G) To such counsel's knowledge and information, there are no
material contracts, indentures, or other documents of the Depositor
required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto or that may be filed subsequently to the Closing Date pursuant
to a Current Report on Form 8-K.
(H) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
issuance and sale of the Certificates in the manner contemplated by
the Prospectus will not
-18-
cause the Trust Fund to be subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as
amended.
(I) No consent, approval, authorization, or order of any State of
New York or federal court or governmental agency or body is required
for the consummation by the Depositor of the transactions contemplated
herein, except (1) such as have been obtained, (2) such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and sale of the Certificates by the Underwriters, as
to which no opinion need be expressed and any recordation of the
assignments of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that has not yet been completed.
(J) Neither the sale of the Certificates to the Underwriters
pursuant to this Agreement, nor the consummation by the Depositor of
any other of the transactions contemplated by, or the fulfillment by
the Depositor of the terms of, this Agreement, the Pooling and
Servicing Agreement or the Mortgage Loan Purchase Agreements, will
conflict with or result in a breach or violation of any term or
provision of, or constitute a default (or an event which with the
passing of time or notification or both, would constitute a default)
under, (1) the certificate of incorporation or by-laws of the
Depositor or, (2) to the knowledge of such counsel, any material
indenture, agreement or instrument to which the Depositor is a party
or by which it is bound or, (3) any State of New York or federal
statute or regulation applicable to the Depositor or, (4) to the
knowledge of such counsel, any order of any New York or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Depositor except, in the case of either (2) or
(4), for any conflict, breach, violation or default that, in the
judgment of such counsel, is not reasonably likely to materially and
adversely affect the Depositor's ability to perform its obligations
under this Agreement or the Pooling and Servicing Agreement.
(ii) An opinion, dated the Closing Date and addressed to the
Underwriters, of counsel to the Underwriters, reasonably acceptable to the
Underwriters.
(iii) In giving their opinions required by the foregoing subsections
(i) and (ii) of this Section, counsel to the Depositor and the
Underwriters, respectively, shall in each case additionally state that
nothing has come to such counsel's attention that has caused it to believe
that (A), in the case of counsel to the Depositor, the Registration
Statement, the Prospectus or the Time of Sale Information, and (B) in the
case of counsel to the Underwriters, the Prospectus or the Time of Sale
Information (in each case other than any financial statements and
supporting schedules and numerical, statistical and/or accounting
information included therein, as to which no statement need be made), in
the case of the Registration Statement, as of the time it was declared
effective under the 1933 Act, in the case of the Prospectus, as of the date
thereof or as of the Closing Date, and as of the Time of Sale, in the case
of the Time of Sale Information, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Such statement shall be based upon conferences and
telephone conversations
-19-
with representatives of the parties hereto, the Mortgage Loan Sellers, the
Master Servicers, the Special Servicer and the Trustee and such statement
may be qualified that, with limited exception, such counsel will not have
reviewed any loan documents. Such counsel may exclude from such opinion
those sections of the Prospectus and Time of Sale Information that
constitute Mortgage Loan Seller Information and Trustee/Certificate
Administrator/Servicer Information.
Such opinion(s) may express its (their) reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Such opinion(s) may be qualified as an opinion only
on the General Corporation Law of the State of Delaware, the laws of the State
of New York and the federal law of the United States.
(c) On the Closing Date, the Lead Underwriters shall have received a
favorable opinion, dated the Closing Date and addressed to the Underwriters, of
special tax and ERISA counsel to the Depositor (i) regarding the qualification
of each of REMIC I and REMIC II as a real estate mortgage investment conduit
within the meaning of Sections 860A through 860G of the Internal Revenue Code of
1986 and (ii) generally to the effect that the statements in the Base Prospectus
and the Prospectus Supplement under the headings "Federal Income Tax
Consequences" and "ERISA Considerations", to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment in the
Certificates to all investors, are correct in all material respects with respect
to those consequences or matters that are discussed therein. Such opinion(s) may
express its (their) reliance as to factual matters on the representations and
warranties made by, and on certificates or other documents furnished by officers
and/or authorized representatives of, the parties to this Agreement and the
Pooling and Servicing Agreement and on certificates furnished by public
officials. Such opinion(s) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto. Such opinion(s) may be qualified as an opinion only on the federal tax
and ERISA law of the United States.
(d) The Depositor shall have delivered to the Lead Underwriters a
certificate, dated the Closing Date, and signed by an authorized officer or
signatory of the Depositor, to the effect that the signer of such certificate
has examined, or has relied upon an examination conducted by appropriate persons
authorized by him or her of, this Agreement, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to his or her
knowledge after reasonable investigation:
(i) the representations and warranties of the Depositor in this
Agreement and the Pooling and Servicing Agreement are true and correct in
all material respects;
-20-
(ii) the Depositor has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date;
(iii) since the date of this Agreement, there has been no material
adverse change in the financial condition of the Depositor; and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(e) Each Mortgage Loan Seller shall have delivered to the Lead
Underwriters a certificate, dated the Closing Date, and signed by an authorized
officer or signatory of the Mortgage Loan Seller to the effect that:
(i) the representations and warranties of the Mortgage Loan Seller in
the respective Mortgage Loan Purchase Agreement are true and correct in all
material respects except as indicated on Schedule A thereto;
(ii) the Mortgage Loan Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied under the respective Mortgage Loan Purchase
Agreement at or prior to the Closing Date; and
(iii) since the date of this Agreement, there has been no material
adverse change in the financial condition of the Mortgage Loan Seller.
(f) The Depositor and the Lead Underwriters shall have received from
Ernst & Young LLP, certified public accountants, a letter dated the Closing Date
and addressed to the Underwriters, in form and substance satisfactory to the
Lead Underwriters, stating in effect that:
(i) they have performed certain specified procedures as a result of
which they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
agrees with the data sheet or computer tape prepared by or on behalf of
each Mortgage Loan Seller, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in the Mortgage Files and in such other sources as
shall be specified by them, and found such data and information to be in
agreement, unless otherwise noted in such letter.
(g) The Depositor shall have received the accountant's letters
specified in Section 5(i).
(h) The Lead Underwriters shall have received, with respect to each of
the Master Servicers, the Special Servicer and the Trustee, a favorable opinion
of counsel, dated the Closing Date and addressed to the Underwriters, addressing
the valid existence of such party
-21-
under the laws of the jurisdiction of its organization, the due authorization,
execution and delivery of the Pooling and Servicing Agreement by such party and,
subject to the same limitations as set forth in Section 6(b)(i)(C) herein, the
enforceability of the Pooling and Servicing Agreement against such party and
such other opinions as shall be reasonably requested by the Lead Underwriters.
Such opinion may express its reliance as to factual matters on representations
and warranties made by, and on certificates or other documents furnished by
officers and/or authorized representatives of, parties to the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered.
(i) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Depositor or a Mortgage Loan Seller (including any
of the Mortgage Loans) which such Underwriter concludes, in the reasonable
judgment of such Underwriter, materially impairs the investment quality of the
Certificates so as to make it impractical or inadvisable to proceed with the
public offering or the delivery of the Certificates as contemplated by the Time
of Sale Information (excluding the Corrective Information) and the Prospectus.
(j) The Certificates shall have been assigned ratings by the Rating
Agencies (as defined in the Pooling and Servicing Agreement) no less than those
set forth on Schedule I and such ratings shall not have been withdrawn,
suspended or qualified.
(k) The Lead Underwriters shall have received copies of any opinions
of counsel to the Depositor supplied to the Rating Agencies relating to certain
matters with respect to the Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriters or accompanied by reliance
letters addressed to the Underwriters.
(l) The Depositor shall have furnished to the Lead Underwriters such
further opinions, information, certificates and documents as the Lead
Underwriters may reasonably have requested, and all proceedings in connection
with the transactions contemplated by this Agreement and all documents incident
hereto shall be in all material respects reasonably satisfactory in form and
substance to the Lead Underwriters and its counsel.
Section 7. Indemnification. (a) The Depositor shall indemnify and hold
harmless each Underwriter (severally and not jointly), its directors and
officers and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all expenses, losses, claims, damages and other liabilities
(including without limitation the reasonable costs of investigation and legal
defense) (the "Liabilities") caused by (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, not misleading, or
any untrue statement or alleged untrue statement of any material fact contained
in the Prospectus or any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in the Time
of Sale Information or any Issuer Free Writing Prospectus or any Issuer
-22-
Information contained in any Underwriter Free Writing Prospectus (provided that
such Issuer Information was delivered to the Depositor to the extent required by
Section 4(b)(ii)), or the omission or alleged omission to state a material fact
necessary 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, which was not corrected by Corrective Information
subsequently supplied by the Depositor or any Mortgage Loan Seller to any
Underwriter within a reasonable period of time prior to the Time of Sale, or
(iii) any breach of the representation and warranty in Section 1(a)(xviii)
herein; provided that, in the case of clauses (i) and (ii) above, insofar as the
Liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission with respect to any information in the Prospectus
as to which any Underwriter has agreed to indemnify the Depositor pursuant to
Section 7(b) herein, the Depositor shall have no obligation to so indemnify and
hold harmless; and provided, further, that the Depositor shall have no
obligation to so indemnify and hold harmless to the extent that the Liabilities
arise out of or are based upon an untrue statement or omission or an alleged
untrue statement or omission made in, or in reliance upon and conformity with,
or otherwise with respect to the Mortgage Loan Seller Information (including
without limitation untrue statements or alleged untrue statements or omissions
or alleged omissions in the portions of the Prospectus Supplement and any free
writing prospectus under the heading "Yield and Maturity Considerations" that
arise out of or are based upon untrue statements or alleged untrue statements or
omissions or alleged omissions in the Mortgage Loan Seller Information or the
Trustee/Certificate Administrator/Servicer Information).
(b) Each Underwriter shall, severally and not jointly, indemnify and
hold harmless the Depositor, its directors and its officers who signed the
Registration Statement and each person, if any, who controls the Depositor
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all Liabilities as incurred, but only with respect to
Liabilities caused by any (i) untrue statements or alleged untrue statements of
a material fact, or omissions or alleged omissions to state a material fact
necessary to make the statements in the Underwriter Information, in the light of
the circumstances under which they were made, not misleading and (ii) untrue
statements or alleged untrue statements of a material fact in any Underwriter
Free Writing Prospectus prepared by or on behalf of such Underwriter or omission
or alleged omission to state in such Underwriter Free Writing Prospectus a
material fact necessary in order to make the statements therein (when read in
conjunction with the Time of Sale Information), in the light of the
circumstances under which they were made, not misleading; provided, that no
Underwriter shall be obligated to so indemnify and hold harmless (A) to the
extent such 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 or any Mortgage
Loan Seller to any Underwriter within a reasonable period of time prior to the
Time of Sale or (B) in the case of clause (ii) of this sentence, with respect to
information that is also contained in the Time of Sale Information.
(c) Each indemnified party shall give notice in writing as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than under subsection (a) or (b) of
this Section 7. Upon request of the indemnified party, the indemnifying party
shall retain counsel reasonably satisfactory to the indemnified party to
represent the
-23-
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding as incurred. If any action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party may participate at its own expense in the defense of any such
action. The indemnifying party may elect to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from the indemnified party. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have agreed to the retention
of such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to designate within a reasonable period of
time counsel reasonably satisfactory to the indemnified party (in which case the
fees and expenses shall be paid as incurred by the indemnifying party). In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. An indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent. However, if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party shall indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party, without any admission of fault,
culpability or failure to act or on behalf of the indemnified party, in
connection with all matters relating to the proceeding that have been asserted
against the indemnified party in such proceeding by the other parties to such
settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason unavailable to an indemnified
party under subsection (a) or (b), or insufficient to hold harmless an
indemnified party, in respect of any losses, claims, damages or liabilities
under subsection (a) or (b) on grounds of public policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor on the
one hand and the applicable Underwriter on the other from the offer and sale of
the Certificates pursuant hereto or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative
-24-
benefits referred to in clause (i) above but also the relative fault of the
Depositor on the one hand and of such Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or other liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Depositor on the one hand, and such
Underwriter on the other, in connection with the offering of the Certificates
underwritten by such Underwriter shall be deemed to be in the same respective
proportions that the total proceeds from the sale of the Certificates
underwritten by such Underwriter (before deducting expenses) received by the
Depositor and the amount by which (i) the total price received by such
Underwriter with respect to the initial resale to investors in the Certificates
acquired by such Underwriter exceeds (ii) the total underwriting discounts and
commissions received by such Underwriter (or, if no such Underwriter discounts
and commissions are payable hereunder, the amount of the other fees payable to
such Underwriter in connection with the offering of the Certificates), bear to
the aggregate offering price of the Certificates. The relative fault of the
Depositor on the one hand and of such 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.
(e) The parties hereto agree that it would not be just and equitable
if contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or other liabilities referred to in this
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. If any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment.
Notwithstanding the provisions of subsection (d) above or this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which (i) the total underwriting discounts and commissions and other
fees received by such Underwriter in connection with the offering of the
Certificates exceeds (ii) the amount of damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Depositor,
an Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and (iii) acceptance
of and payment for any of the Certificates.
-25-
(g) The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the respective amount of
Certificates they have purchased hereunder, and not joint.
(h) Each Underwriter (the "Indemnifying Underwriter") will indemnify
and hold harmless the other Underwriters and each person, if any, who controls
such Underwriter within the meaning of either the 1933 Act or the 1934 Act (the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages or liabilities, joint or several, to which the Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) 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 (when read in conjunction with
the Time of Sale Information) to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they were
made, not misleading at the Time of Sale, contained in any Underwriter Free
Writing Prospectus prepared by, or on behalf of, or used or referred to by, such
Indemnifying Underwriter or (ii) the failure of such Indemnifying Underwriter,
or any member of its selling group, to comply with any provision of Sections
4(b) or 9 herein, 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 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 or any Mortgage Loan Seller
to any Underwriter within a reasonable period of time prior to the Time of Sale.
This agreement will be in addition to any liability that any Underwriter may
otherwise have.
Section 8. Representations and Warranties to Survive Delivery. All
representations and warranties of the Depositor contained in this Agreement
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
in respect of such Underwriter, and shall survive delivery of the Certificates
to the Underwriters.
Section 9. Defaulting Underwriter. If, on the Closing Date, any of the
Underwriters shall fail or refuse to purchase Certificates that it has agreed to
purchase hereunder on such date, and the aggregate principal amount of
Certificates which such defaulting Underwriter agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date, the other Underwriters shall be
obligated to purchase the Certificates which such defaulting Underwriter agreed
but failed or refused to purchase on such date; provided that no Underwriter
shall be obligated under this Section 9 to purchase Certificates of a Class that
it is not otherwise obligated to purchase under this Agreement. If, on the
Closing Date, one of the Underwriters shall fail or refuse to purchase
Certificates that it has agreed to purchase hereunder on such date and the
aggregate principal amount of Certificates with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Certificates
to be purchased on such date and arrangements satisfactory to the non-defaulting
Underwriters and the Depositor for the purchase of such Certificates are not
made within 36 hours after such default, this Agreement shall terminate
-26-
without liability on the part of any non-defaulting Underwriter or of the
Depositor, except that Depositor will continue to be liable for the payment of
expenses as set forth in Section 5(h) and the provisions of Section 7 herein
remain in effect. In any such case either such non-defaulting Underwriters or
the Depositor shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
Section 10. Termination of Agreement. (a) The Lead Underwriters may
terminate its obligations under this Agreement, by notice to the Depositor, at
any time at or prior to the Closing Date if the sale of the Certificates
provided for herein is not consummated because of any failure or refusal on the
part of the Depositor to comply in all material respects with the terms, or to
fulfill in all material respects any of the conditions of, this Agreement, or if
for any reason the Depositor shall be unable to perform in all material respects
its obligations under this Agreement.
(b) The Lead Underwriters may terminate its obligations under this
Agreement in the absolute discretion of the Lead Underwriters, by notice given
to the Depositor, if (A) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by 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;
(iii) there shall have occurred a material disruption in securities settlement
or clearance services in the United States; or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change or prospective change in
financial markets or any calamity or crisis, either within or outside the United
States, that in the judgment of the Underwriter is material and adverse and
makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Certificates on the terms and in the manner contemplated by this
Agreement and the Prospectus.
(c) If any Underwriter terminates its obligations under this Agreement
in accordance with Section 10(a) herein, the Depositor shall reimburse such
Underwriter for all reasonable out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been reasonably incurred by such
Underwriter in connection with the proposed purchase and sale of the
Certificates.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and sent either by certified mail (return receipt requested)
or by courier service (proof of delivery requested) to the intended recipient at
the address for notices specified for such party in this Section 11, or as to
such party, at such other address as shall be designated by it in a notice
hereunder to the other parties hereto. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given when
received in the case of a notice sent by mail or courier service. Notices to (i)
the Underwriters shall be given to the Representative at Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, c/o Global Commercial Real Estate, 4 World
Financial Center, 000 Xxxxx Xxxxxx,
-00-
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx (with copies
to (a) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, c/o Global Commercial
Real Estate, 4 World Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Director of CMBS Securitizations and (b) Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 4 World Financial Center, 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel for
Global Commercial Real Estate in the Office of the General Counsel); and (ii)
the Depositor shall be given to it at Xxxxxxx Xxxxx Mortgage Investors, Inc.,
x/x Xxxxxx Xxxxxxxxxx Xxxx Xxxxxx, 0 World Financial Center, 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx (with copies
to (a) Xxxxxxx Xxxxx Mortgage Investors, Inc., x/x Xxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, 0 World Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Director of CMBS Securitizations; and (b) Xxxxxxx Xxxxx
Mortgage Investors, Inc., 4 World Financial Center, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel for Global
Commercial Real Estate in the Office of the General Counsel); and (iii) any such
party shall be given to such other address as may hereafter be furnished by such
party to the others in writing.
Section 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Depositor and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person or entity, other than the Underwriters and
the Depositor and their respective successors and the controlling persons and
officers and directors referred to in Section 7 and their respective successors,
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Depositor and their
respective successors, and said controlling persons and officers and directors
and their respective successors, heirs and legal representatives, and for the
benefit of no other person or entity. No purchaser of Certificates from the
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
Section 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
Section 14. Entire Agreement. This Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the
Certificates, represents the entire agreement between the Depositor, on the one
hand, and the Underwriters, on the other, with respect to the preparation of the
Prospectus, and the conduct of the offering, and the purchase and sale of the
Certificates.
Section 15. Miscellaneous. Neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such amendment, waiver, discharge or
termination is sought. This Agreement may be signed in any number of duplicate
originals, each of which shall be deemed an original, which taken together shall
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along
-28-
with all counterparts, will become a binding agreement between the Underwriters
and the Depositor in accordance with its terms.
Section 16. Authority of the Representative. Any action by the
Underwriters hereunder may be taken by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated on behalf of the Underwriters, and any such action taken by Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated shall be binding upon the
Underwriters.
-29-
Very truly yours,
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /S/ Xxxxx X. Xxxxxxx
-------------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
For itself and on behalf of Citigroup Global Markets Inc. and PNC Capital
Markets LLC
By: /S/ Xxxxx X. Xxxxxxx
-------------------------------------
Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By: /S/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
ANNEX A
The First Page of the Depositor's Free Writing Prospectus dated May 16, 2008
A-1
THE DATE OF THIS FREE WRITING PROSPECTUS IS MAY 16, 2008
The depositor has filed a registration statement (including a prospectus)
with the SEC (SEC File No. 333-142235) 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 entity and this
offering. You may get these documents for free by visiting XXXXX on the SEC
website 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 toll-free 000-000-0000.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2008-C1
$814,758,000
(Approximate)
XXXXXXX XXXXX MORTGAGE TRUST 2008-C1
as Issuing Entity
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
as Depositor
BANK OF AMERICA, NATIONAL ASSOCIATION
DEXIA REAL ESTATE CAPITAL MARKETS
XXXXXXX XXXXX MORTGAGE LENDING, INC.
PNC BANK, NATIONAL ASSOCIATION
GENERAL ELECTRIC CAPITAL CORPORATION
CAPMARK FINANCE INC.
as Sponsors and Loan Sellers
----------
We are Xxxxxxx Xxxxx Mortgage Investors, Inc., the depositor with respect
to the securitization transaction that is the subject of this offering
prospectus. This offering prospectus relates to, and is accompanied by, our base
prospectus dated May 10, 2007. Only the classes of commercial mortgage
pass-through certificates listed in the table below are being offered by this
offering prospectus and the accompanying base prospectus. The offered
certificates represent beneficial interests only in the issuing entity
identified above and will not represent obligations of or interests in us, any
sponsor or any of their respective affiliates. The assets of the issuing entity
will consist primarily of a pool of 92 commercial, multifamily and manufactured
housing community mortgage loans with an initial mortgage pool balance of
approximately $948,772,134 and the other characteristics described in this
offering prospectus.
INVESTING IN THE OFFERED CERTIFICATES INVOLVES RISKS. YOU SHOULD CAREFULLY
REVIEW THE FACTORS DESCRIBED UNDER "RISK FACTORS" BEGINNING ON PAGE 42 OF THIS
OFFERING PROSPECTUS AND ON PAGE 20 OF THE ACCOMPANYING BASE PROSPECTUS.
The holders of each class of offered certificates will be entitled to
receive monthly distributions of interest, principal or both, commencing in July
2008. The offered certificates will accrue interest from June 1, 2008. Credit
enhancement for any particular class of the offered certificates is being
provided through the subordination of various other classes, including multiple
non-offered classes, of the certificates.
APPROXIMATE APPROXIMATE
EXPECTED INITIAL TOTAL INITIAL
RATINGS PRINCIPAL PASS-THROUGH ASSUMED FINAL RATED FINAL
(FITCH/XXXXX'X/S&P) BALANCE RATE DISTRIBUTION DATE DISTRIBUTION DATE
------------------- ------------- ------------ ----------------- -----------------
Class A-1 .......... AAA/Aaa/AAA $ 18,179,000 % August 2012 February 2051
Class A-2 .......... AAA/Aaa/AAA $ 55,593,000 % October 2012 February 2051
Class A-3 .......... AAA/Aaa/AAA $ 65,593,000 % December 2014 February 2051
Class A-SB ......... AAA/Aaa/AAA $ 32,365,000 % February 2017 February 2051
Class A-4 .......... AAA/Aaa/AAA $326,361,000 % December 2017 February 2051
Class A-1A ......... AAA/Aaa/AAA $ 43,777,000 % December 2017 February 2051
Class AF-A ......... AAA/Aaa/AAA $150,000,000 % August 2012 February 2051
Class AM ........... AAA/Aaa/AAA $ 71,156,000 % January 2018 February 2051
Class AM-A ......... AAA/Aaa/AAA $ 6,254,000 % January 2018 February 2051
Class AJ ........... AAA/Aaa/AAA $ 41,805,000 % January 2018 February 2051
Class AJ-A ......... AAA/Aaa/AAA $ 3,675,000 % January 2018 February 2051
No one will list the offered certificates on any national securities
exchange or any automated quotation system of any registered securities
association. The Securities and Exchange Commission and state securities
regulators have not approved or disapproved of the certificates offered to you
or determined if this offering prospectus or the accompanying base prospectus is
adequate or accurate. Any representation to the contrary is a criminal offense.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc of America
Securities LLC, Citigroup Global Markets Inc. and PNC Capital Markets LLC are
the underwriters of this offering. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Banc of America Securities LLC are acting as joint bookrunning
managers in the following manner: Banc of America Securities LLC is acting as
sole bookrunning manager with respect to % of the class certificates, and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated is acting as sole bookrunning
manager with respect to the remainder of the class certificates and all other
classes of offered certificates. Citigroup Global Markets Inc. and PNC Capital
Markets LLC will act as co-managers. We will sell the offered certificates to
the underwriters, who will sell their respective allotments of those securities
from time to time in negotiated transactions or otherwise at varying prices to
be determined at the time of sale. The underwriters expect to deliver the
offered certificates to purchasers on or about June 12, 2008. We will identify
in a final prospectus supplement relating to the offered certificates the amount
of sale proceeds that we expect to receive from this offering before deducting
expenses payable by us. Not every underwriter will have an obligation to buy
offered certificates from us. See "Method of Distribution" in this offering
prospectus.
XXXXXXX XXXXX & CO. BANC OF AMERICA SECURITIES LLC
CITI PNC CAPITAL MARKETS LLC
ANNEX B
The First Page of the Depositor's Free Writing Prospectus dated May 20, 2008
The First Page of the Depositor's Free Writing Prospectus dated May 21, 2008
B-1
Sent: Tuesday, May 20, 2008 1:33 PM
Subject: XXXX 0000-X0
Based on our review of the transaction, RREEF is not the borrower for more than
5% of the pool by loan balance on the aggregate?
The depositor has filed a registration statement (including a prospectus) with
the SEC (SEC File No. 333-142235) 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 entity 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 toll-free 0-000-000-0000. Information in this material
regarding any assets backing any securities described or referred to herein
supersedes all prior information regarding such assets that is contrary to the
information contained herein. The securities may not be suitable investments for
all investors. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Banc of
America Securities LLC, Citigroup Global Markets Inc. and PNC Capital Markets
LLC and their affiliates, officers, directors, partners and employees, including
persons involved in the preparation or issuance of this material may, from time
to time, have long or short positions in, and buy and sell, the securities
described or referred to herein or derivatives thereof (including options), and
may have an investment or commercial banking relationship with the issuer.
IRS CIRCULAR 230 NOTICE
THIS INFORMATION IS NOT INTENDED OR WRITTEN TO BE USED, AND CANNOT BE USED, FOR
THE PURPOSE OF AVOIDING U.S. FEDERAL, STATE OR LOCAL TAX PENALTIES. THIS
INFORMATION IS WRITTEN AND PROVIDED BY THE UNDERWRITERS IN CONNECTION WITH THE
PROMOTION OR MARKETING OF THE TRANSACTIONS OR MATTERS ADDRESSED HEREIN.
INVESTORS SHOULD SEEK ADVICE BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN
INDEPENDENT TAX ADVISOR.
Any legends, disclaimers or other notices or language that may appear in the
text of, at the bottom of, or attached to, an email communication to which this
material may have been attached, that are substantially similar to or in the
nature of the following disclaimers, statements or language, are not applicable
to these materials and should be disregarded:
- disclaimers regarding accuracy or completeness of the information contained
herein or restrictions as to reliance on the information contained herein by
investors;
- disclaimers of responsibility or liability;
- statements requiring investors to read or acknowledge that they have read or
understand the registration statement or any disclaimers or legends;
- language indicating that this communication is neither a prospectus nor an
offer to sell or a solicitation or an offer to buy;
1
FREE WRITING PROSPECTUS
FILED PURSUANT TO RULE 433
REGISTRATION STATEMENT NO.: 333-142235
THE DATE OF THIS FREE WRITING PROSPECTUS IS May 21, 2008
Xxxxxxx Xxxxx Mortgage Trust 2008-C1, Commercial Pass-Through Certificates,
Series 2008-C1
The information in this material clarifies, updates or modifies certain of the
information contained in that certain free writing prospectus (referred to as an
"offering prospectus"), dated May 16, 2008 (the "Free Writing Prospectus") and
relating to the above-captioned series of commercial mortgage pass-through
certificates (such series "MLMT Series 2008-C1") and the structural and
collateral term sheet, dated May 15, 2008 (the "Term Sheet" and together with
the Free Writing Prospectus, the "Transaction Free Writing Prospectus") and also
relating to MLMT Series 2008-C1. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Transaction Free Writing
Prospectus.
STATEMENTS REGARDING THIS FREE WRITING PROSPECTUS
The depositor has filed a registration statement (including a prospectus) with
the SEC (SEC File No. 333-142235) 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 entity 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 toll free 000-000-0000.
Information in this material regarding any assets backing any securities
described or referred to herein supersedes all prior information regarding such
assets that is contrary to the information contained herein.
The securities may not be suitable investments for all investors. Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Banc of America Securities LLC, Citigroup
Global Markets Inc. and PNC Capital Markets LLC and their affiliates, officers,
directors, partners and employees, including persons involved in the preparation
or issuance of this material may, from time to time, have long or short
positions in, and buy and sell, the securities described or referred to herein
or derivatives thereof (including options), and may have an investment or
commercial banking relationship with the issuer.
ANNEX C
The First Two Pages of the Structural and
Collateral Term Sheet dated May 15, 2008
B-2
FREE WRITING PROSPECTUS
FILED PURSUANT TO RULE 433
REGISTRATION STATEMENT NO.:333-142235
The depositor has filed a registration statement (including a prospectus) with
the SEC (SEC File No. 333-142235) 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 entity 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 toll free 000-000-0000.
[Xxxxxxx Xxxxx LOGO] [Bank of America LOGO]
[PNCBANK LOGO] [DEXIA LOGO]
[CAPMARK LOGO]
STRUCTURAL AND COLLATERAL TERM SHEET
$814,758,000 (APPROXIMATE)
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2008-C1
CLASS A-1, CLASS X-0, XXXXX X-0, CLASS A-SB, CLASS A-4, CLASS A-1A, CLASS AF-A,
CLASS AM, CLASS AM-A,
CLASS AJ AND CLASS AJ-A
XXXXXXX XXXXX MORTGAGE TRUST 2008-C1
Issuing Entity
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
BANK OF AMERICA, NATIONAL ASSOCIATION
DEXIA REAL ESTATE CAPITAL MARKETS
XXXXXXX XXXXX MORTGAGE LENDING, INC.
PNC BANK, NATIONAL ASSOCIATION
GENERAL ELECTRIC CAPITAL CORPORATION
CAPMARK FINANCE INC.
Mortgage Loan Sellers & Sponsors
MIDLAND LOAN SERVICES, INC.
WACHOVIA BANK, NATIONAL ASSOCIATION
BANK OF AMERICA, NATIONAL ASSOCIATION
Master Servicers
MIDLAND LOAN SERVICES, INC.
Special Servicer
LASALLE BANK NATIONAL ASSOCIATION
Certificate Administrator and Custodian
U.S. BANK NATIONAL ASSOCIATION
Trustee
MAY 15, 2008
This material is being provided by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Banc of America Securities LLC, Citigroup Global Markets Inc. and
PNC Capital Markets LLC (collectively, the "Underwriters") for your information.
This material is not to be construed as an offer to sell or the solicitation of
any offer to buy any security in any jurisdiction where such an offer or
solicitation would be illegal. The information contained in this material may
pertain to securities that ultimately are not sold. The information contained in
this material may be based on assumptions regarding market conditions and other
matters as reflected herein. The Underwriters make no representation regarding
the likelihood that any of such assumptions will coincide with actual market
conditions or events. The Underwriters and their affiliates, officers,
directors, partners and employees, including persons involved in the preparation
or issuance of this material may, from time to time, have long or short
positions in, and buy and sell, the securities mentioned herein or derivatives
thereof (including options). Information contained in this material is current
as of the date appearing in this material only. INFORMATION IN THIS MATERIAL
REGARDING ANY ASSETS BACKING ANY SECURITIES DISCUSSED HEREIN SUPERSEDES ALL
PRIOR INFORMATION REGARDING SUCH ASSETS THAT IS CONTRARY TO THE INFORMATION
CONTAINED IN THIS MATERIAL. ANY INFORMATION IN THIS MATERIAL, WHETHER REGARDING
THE ASSETS BACKING ANY SECURITIES DISCUSSED HEREIN OR OTHERWISE, WILL BE
SUPERSEDED BY THE INFORMATION CONTAINED IN ANY PROSPECTUS DELIVERED TO YOU PRIOR
TO THE TIME OF SALE. The Underwriters are acting as underwriters and not acting
as agents for the issuer in connection with the proposed transaction.
NOTICE RELATING TO AUTOMATICALLY GENERATED E-MAIL DISCLAIMERS
Any legends, disclaimers or other notices or language that may appear in the
text of, at the bottom or top of, or attached to, an email communication to
which this material may have been attached are not applicable to these materials
and should be disregarded. Such legends, disclaimers or other notices have been
automatically generated as a result of these materials having been sent via
Bloomberg or another e-mail system.
XXXXXXX XXXXX & CO. BANC OF AMERICA SECURITIES LLC
CITI PNC CAPITAL MARKETS LLC
XXXXXXX XXXXX MORTGAGE TRUST 2008-C1
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2008-C1
STRUCTURAL OVERVIEW
OFFERED CERTIFICATES
APPROX.
APPROX. PERCENTAGE
EXPECTED RATINGS INITIAL TOTAL INITIAL OF INITIAL WEIGHTED PRINCIPAL ASSUMED FINAL
------------------ CERTIFICATE CREDIT MORTGAGE AVERAGE WINDOW DISTRIBUTION
CLASS FITCH XXXXX'X S&P PRINCIPAL BALANCE(1) SUPPORT POOL BALANCE LIFE (YEARS)(2) (MONTHS)(2) DATE(2) RATE TYPE
------------------------------------------------------------------------------------------------------------------------------
A-1 AAA Aaa AAA $ 18,179,000 30.000% 1.916% 2.38 1 - 50 Aug-12 (3)
A-2 AAA Aaa AAA $ 55,593,000 30.000% 5.859% 4.32 50-52 Oct-12 (3)
A-3 AAA Aaa AAA $ 65,593,000 30.000% 6.913% 6.19 74-78 Dec-14 (3)
A-SB AAA Aaa AAA $ 32,365,000 30.000% 3.411% 6.52 52-104 Feb-17 (3)
A-4 AAA Aaa AAA $326,361,000 30.000% 34.398% 9.21 104-114 Dec-17 (3)
A-1A AAA Aaa AAA $ 43,777,000 30.000% 4.614% 8.74 1-114 Dec-17 (3)
AF-A AAA Aaa AAA $150,000,000 14.125% 15.810% 4.17 50-50 Aug-12 (3)
AM AAA Aaa AAA $ 71,156,000 20.000% 7.500% 9.52 114-115 Jan-18 (3)
AM-A AAA Aaa AAA $ 6,254,000 20.000% 0.659% 9.57 114-115 Jan-18 (3)
AJ AAA Aaa AAA $ 41,805,000 14.125% 4.406% 9.58 115-115 Jan-18 (3)
AJ-A AAA Aaa AAA $ 3,675,000 14.125% 0.387% 9.58 115-115 Jan-18 (3)
NON-OFFERED CERTIFICATES(5)
INITIAL APPROX.
CERTIFICATE APPROX. PERCENTAGE
EXPECTED RATINGS PRINCIPAL BALANCE TOTAL INITIAL OF INITIAL WEIGHTED PRINCIPAL ASSUMED FINAL
------------------ OR NOTIONAL CREDIT MORTGAGE AVERAGE WINDOW DISTRIBUTION
CLASS FITCH XXXXX'X S&P AMOUNT(1) SUPPORT POOL BALANCE LIFE (YEARS)(2) (MONTHS)(2) DATE(2) RATE TYPE
---------------------------------------------------------------------------------------------------------------------------
B AA+ Aa1 AA+ $ 10,673,000 13.000% 1.125% 9.58 000-000 Xxx-00 (0)
X XX Xx0 XX $ 11,860,000 11.750% 1.250% 9.58 000-000 Xxx-00 (0)
X XX- Xx0 XX- $ 8,302,000 10.875% 0.875% 9.58 115-115 Jan-18 (3)
E A+ A1 A+ $ 8,301,000 10.000% 0.875% 9.58 115-115 Jan-18 (3)
F A A2 A $ 9,488,000 9.000% 1.000% 9.58 115-115 Jan-18 (3)
G A- A3 A- $ 9,488,000 8.000% 1.000% 9.58 115-115 Jan-18 (3)
H BBB+ Baa1 BBB+ $ 10,674,000 6.875% 1.125% 9.62 115-116 Feb-18 (3)
J BBB Baa2 BBB $ 11,859,000 5.625% 1.250% 9.67 116-116 Feb-18 (3)
K BBB- Baa3 BBB- $ 10,674,000 4.500% 1.125% 9.67 116-116 Feb-18 (3)
L BB+ Ba1 BB+ $ 8,302,000 3.625% 0.875% 9.67 116-116 Feb-18 (3)
X XX Xx0 XX $ 3,558,000 3.250% 0.375% 9.67 116-116 Feb-18 (3)
N BB- Ba3 BB- $ 3,557,000 2.875% 0.375% 9.67 116-116 Feb-18 (3)
P B+ B1 B+ $ 3,558,000 2.500% 0.375% 9.67 116-116 Feb-18 (3)
Q B B2 B $ 2,372,000 2.250% 0.250% 9.67 116-116 Feb-18 (3)
S B- B3 B- $ 3,558,000 1.875% 0.375% 9.69 116-117 Mar-18 (3)
T NR NR NR $ 17,790,134 0.000% 1.875% 10.84 117-234 Dec-27 (3)
X AAA Aaa AAA $948,772,134(4) N/A N/A N/A N/A Dec-27 Variable
(1) In the case of each such class, subject to a permitted variance of plus or
minus 5.0%.
(2) As of the cut-off date the weighted average life, principal window and
assumed final distribution date were calculated assuming no prepayments
will be made on the mortgage loans prior to their related maturity dates
and the other Modeling Assumptions that will be described in the offering
prospectus.
(3) The pass-through rates on the class X-0, X-0, X-0, X-XX, X-0, X-0X, XX-X,
AM, AM-A, AJ, AJ-A, B, C, D, E, F, G, H, J, K, L, M, N, P, Q, S and T
certificates will equal any one of (i) a fixed rate, (ii) the weighted
average of certain net mortgage rates on the mortgage loans (in each case
adjusted, if necessary, to accrue on the basis of a 360-day year consisting
of twelve 30-day months), (iii) a rate equal to the lesser of a specified
pass-through rate and the weighted average of certain net mortgage rates on
the mortgage loans (in each case adjusted, if necessary, as described in
the offering prospectus) or (iv) the weighted average of certain net
mortgage rates on the mortgage loans (in each case adjusted, if necessary,
as described in the offering prospectus) less a specified percentage.
(4) The class X certificates will not have certificate principal balances and
their holders will not receive distributions of principal, but such holders
will be entitled to receive payments of the interest accrued on the
notional amount of the class X certificates, as described in the offering
prospectus.
(5) Not offered pursuant to the offering prospectus or this term sheet. Any
information provided herein regarding the characteristics of these classes
of certificates is provided only to enhance your understanding of the
offered certificates. The non-offered certificates also include one or more
classes of REMIC residual certificates, none of which have certificate
principal balances or pass-through rates.
This material is being provided by Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Banc of America Securities LLC, Citigroup Global Markets Inc. and
PNC Capital Markets LLC (collectively, the "Underwriters") for your information.
This material is not to be construed as an offer to sell or the solicitation of
any offer to buy any security in any jurisdiction where such an offer or
solicitation would be illegal. The information contained in this material may
pertain to securities that ultimately are not sold. The information contained in
this material may be based on assumptions regarding market conditions and other
matters as reflected herein. The Underwriters make no representation regarding
the likelihood that any of such assumptions will coincide with actual market
conditions or events. The Underwriters and their affiliates, officers,
directors, partners and employees, including persons involved in the preparation
or issuance of this material may, from time to time, have long or short
positions in, and buy and sell, the securities mentioned herein or derivatives
thereof (including options). Information contained in this material is current
as of the date appearing in this material only. INFORMATION IN THIS MATERIAL
REGARDING ANY ASSETS BACKING ANY SECURITIES DISCUSSED HEREIN SUPERSEDES ALL
PRIOR INFORMATION REGARDING SUCH ASSETS. ANY INFORMATION IN THIS MATERIAL,
WHETHER REGARDING THE ASSETS BACKING ANY SECURITIES DISCUSSED HEREIN OR
OTHERWISE, WILL BE SUPERSEDED BY THE INFORMATION CONTAINED IN ANY PROSPECTUS
DELIVERED TO YOU PRIOR TO THE TIME OF SALE. The Underwriters are acting as
underwriters and not acting as agents for the issuer in connection with the
proposed transaction.
1
SCHEDULE I
Xxxxxxx Xxxxx Mortgage Trust 2008-C1 Commercial Mortgage Pass-Through
Certificates, Series 2008-C1, Class A-1, Class X-0, Xxxxx X-0, Class A-SB,
Class A-4, Class A-1A, Class A-1AF, Class AM, Class AM-A, Class AM-AF, Class AJ,
Class AJ-A and Class XX-XX.
Underwriters Amount of Certificates to be Purchased Class of Certificates to be Purchased
-------------------------------------------------- -------------------------------------- -------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $13,524,370 A-1
Banc of America Securities LLC $4,654,630 A-1
Citigroup Global Markets Inc. $0 A-1
PNC Capital Markets LLC $0 A-1
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $41,358,728 A-2
Banc of America Securities LLC $14,234,272 A-2
Citigroup Global Markets Inc. $0 A-2
PNC Capital Markets LLC $0 A-2
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $48,798,285 A-3
Banc of America Securities LLC $16,794,715 A-3
Citigroup Global Markets Inc. $0 A-3
PNC Capital Markets LLC $0 A-3
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $24,078,126 A-SB
Banc of America Securities LLC $8,286,874 A-SB
Citigroup Global Markets Inc. $0 A-SB
PNC Capital Markets LLC $0 A-XX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $242,798,121 A-4
Banc of America Securities LLC $83,562,879 A-4
Sch. I-1
Citigroup Global Markets Inc. $0 A-4
PNC Capital Markets LLC $0 A-4
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $32,568,148 A-1A
Banc of America Securities LLC $11,208,852 A-1A
Citigroup Global Markets Inc. $0 A-1A
PNC Capital Markets LLC $0 A-1A
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $90,963,461 A-1AF
Banc of America Securities LLC $31,306,539 A-1AF
Citigroup Global Markets Inc. $0 A-1AF
PNC Capital Markets LLC $0 A-1AF
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $52,936,911 AM
Banc of America Securities LLC $18,219,089 AM
Citigroup Global Markets Inc. $0 AM
PNC Capital Markets LLC $0 AM
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $4,652,699 AM-A
Banc of America Securities LLC $1,601,301 AM-A
Citigroup Global Markets Inc. $0 AM-A
PNC Capital Markets LLC $0 AM-A
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $12,994,674 AM-AF
Banc of America Securities LLC $4,472,326 AM-AF
Citigroup Global Markets Inc. $0 AM-AF
PNC Capital Markets LLC $0 AM-XX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $31,101,067 AJ
Banc of America Securities LLC $10,703,933 AJ
SCH. I-2
Citigroup Global Markets Inc. $0 AJ
PNC Capital Markets LLC $0 XX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $2,734,037 AJ-A
Banc of America Securities LLC $940,963 AJ-A
Citigroup Global Markets Inc. $0 AJ-A
PNC Capital Markets LLC $0 AJ-A
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $7,635,217 XX-XX
Banc of America Securities LLC $2,627,783 XX-XX
Citigroup Global Markets Inc. $0 XX-XX
PNC Capital Markets LLC $0 XX-XX
SCH. I-3
SCHEDULE I (CONTINUED)
Class Initial Aggregate Approximate Initial Purchase Rating(3)
Designation Principal Amount of Class(1) Pass-Through Rate Price(2) Fitch/Xxxxx'x/S&P
----------- ---------------------------- ------------------- ---------- -----------------
A-1 $18,179,000 4.706% 100.24894% XXX/Xxx/XXX
X-0 $55,593,000 5.425% 100.54821% XXX/Xxx/XXX
X-0 $65,593,000 5.710% 100.54735% AAA/Aaa/AAA
A-SB $32,365,000 5.650% 100.54969% AAA/Aaa/AAA
A-4 $326,361,000 5.690% 100.54789% AAA/Aaa/AAA
A-1A $43,777,000 5.655% 100.54827% AAA/Aaa/AAA
A-1AF $122,270,000 5.406% 100.54992% AAA/Aaa/AAA
AM $71,156,000 6.266% 99.21500% AAA/Aaa/AAA
AM-A $6,254,000 6.266% 99.19206% AAA/Aaa/AAA
AM-AF $17,467,000 6.246% 100.54778% AAA/Aaa/AAA
AJ $41,805,000 6.266% 91.92474% AAA/Aaa/AAA
AJ-A $3,675,000 6.266% 91.92474% AAA/Aaa/AAA
XX-XX $10,263,000 6.266% 97.06082% AAA/Aaa/AAA
----------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates shown is net accrued
interest. The purchase price to be paid will include accrued interest at
the initial Pass-Through Rate therefor on the aggregate stated or notional
amount, plus, if applicable, accrued interest on the actual principal
amount or notional amount thereof at the applicable Pass-Through Rate from
June 1, 2008 to but not including the Closing Date. The purchase price does
not reflect any underwriting discount.
(3) By each of Fitch, Inc. ("Fitch"), Xxxxx'x Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P").
SCH. I-4
