Exhibit 1.1
XXXXXXX XXXXX MORTGAGE TRUST 2005-MCP1
Commercial Mortgage Pass-Through Certificates, Series 2005-MCP1
Class A-1, Class A-2, Class A-3, Class A-SB, Class A-4, Class A-1A,
Class AM, Class AJ, Class B, Class C, Class D and Class XP
Underwriting Agreement
June 21, 2005
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
As Representative of the several
Underwriters listed on Schedule I hereto
c/x Xxxxxxx 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 sell to the several Underwriters listed on Schedule
I (the "Underwriters"), for whom Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated is acting as representative (the "Representative"), the principal
amount or notional amount, as the case may be, of Commercial Mortgage
Pass-Through Certificates, Series 2005-MCP1, Classes A-1, A-2, A-3, A-SB, A-4,
A-1A, AM, AJ, B, C, D and XP (the "Offered Certificates") as set forth in
Schedule X. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Countrywide
Securities Corporation are acting as joint bookrunning managers with respect
to the offering of the Offered Certificates (in such capacity, the "Lead
Underwriters") in the following manner: Countrywide Securities Corporation is
acting as sole bookrunning manager with respect to 42% of the Class A-3
Certificates, and Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated is acting
as sole bookrunning manager with respect to the remainder of the Class A-3
Certificates and all other classes of Offered Certificates. PNC Capital
Markets, Inc. and Wachovia Capital Markets, LLC will act as co-managers. The
Offered Certificates, together with the Commercial Mortgage Pass-Through
Certificates, Series 2005-MCP1, Classes E, F, G, H, J, K, L, M, N, P, Q, XC,
Z, R-I and R-II (the "Private Certificates") are referred to herein as the
"Certificates." The Certificates will represent beneficial interests in, among
other things, a pool of mortgage loans described in the Prospectus referred to
below (the "Mortgage Loans") and certain moneys received under each Mortgage
Loan after the related due date for such Mortgage Loan in June 2005 (or, with
respect to those Mortgage Loans, if any, that were originated in May or June
2005 and have their first payment date in July 2005, June 1, 2005, or, with
respect to those Mortgage Loans, if any, that were originated in June 2005 and
have their first due date in August 2005, the date of origination) (in any
case, the "Cut-off Date"). The Certificates will be issued pursuant to the
provisions of a Pooling and Servicing Agreement to be dated as of June 1, 2005
(the "Pooling and Servicing Agreement"), between the Depositor, Midland Loan
Services, Inc., as master servicer (in such capacity, the "Master Servicer")
and as special servicer (in such capacity, the
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"Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee").
The Depositor hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Offered Certificates, as
follows:
1. Registration Statement. The Depositor has prepared and filed with the
Securities and Exchange Commission (the "Commission"), in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"),
a registration statement on Form S-3 (No. 333-116820), including a prospectus,
relating to the Offered Certificates. The registration statement as amended at
the time when it became effective, or, if a post-effective amendment is filed
with respect thereto, as amended by such post-effective amendment at the time
of its effectiveness, is referred to in this Agreement as the "Registration
Statement". The Depositor also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Offered Certificates (the "Prospectus
Supplement"). The related prospectus covering the Offered Certificates in the
form first used to confirm sales of the Offered Certificates is hereinafter
referred to as the "Basic Prospectus", and the Basic Prospectus as
supplemented by the Prospectus Supplement in the form first used to confirm
sales of the Offered Certificates is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
any preliminary prospectus used in connection with the offering of the Offered
Certificates (the "Preliminary Prospectus") or the Prospectus shall be deemed
to refer to and include any exhibits thereto and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and any
reference to "amend," "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed as of the Closing Date (as
defined below) under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Exchange Act") that are deemed to be incorporated by reference therein.
When used in this Agreement, "Basic Documents" shall mean (i) the
Pooling and Servicing Agreement, (ii) the Certificates, (iii) the Mortgage
Loan Purchase Agreement, dated as of June 21, 2005, between Xxxxxxx Xxxxx
Mortgage Lending, Inc. ("Xxxxxxx") and the Depositor (the "Xxxxxxx Mortgage
Loan Purchase Agreement"), (iv) the Mortgage Loan Purchase Agreement, dated as
of June 21, 2005, between Countrywide Commercial Real Estate Finance, Inc.
("Countrywide") and the Depositor (the "Countrywide Mortgage Loan Purchase
Agreement"), (v) the Mortgage Loan Purchase Agreement, dated as of June 21,
2005, between PNC Bank, National Association ("PNC Bank") and the Depositor
(the "PNC Bank Mortgage Loan Purchase Agreement"), and (vi) any other
contract, agreement or instrument which is or is to be entered into by the
Depositor on the Closing Date or otherwise in connection with any of the
foregoing or this Agreement. Xxxxxxx, Countrywide and PNC Bank are
collectively referred to herein as the "Sellers". To the extent not defined
herein, capitalized terms used herein have the meanings assigned to such terms
in the Pooling and Servicing Agreement.
2. Purchase of the Offered Certificates by the Underwriters. (a) The
Depositor agrees to sell the Offered Certificates to the several Underwriters
as provided in this Agreement,
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and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Depositor, the
respective principal amount or notional amount, as the case may be, of each
class of the Offered Certificates set forth opposite such Underwriter's name
in Schedule I at the Purchase Price set forth in Schedule I, plus, if
applicable, accrued interest on the actual principal amount or notional amount
thereof at the applicable Pass-Through Rate from June 1, 2005 to the Closing
Date (as defined below). The Depositor will not be obligated to deliver any of
the Offered Certificates except upon payment for all the Offered Certificates
to be purchased as provided herein.
(b) The Depositor understands that the Underwriters intend to
make a public offering of their respective portions of the Offered
Certificates as soon after the effectiveness of this Agreement as in the
judgment of the Lead Underwriters is advisable, and initially to offer the
Offered Certificates on the terms set forth in the Prospectus.
(c) Xxxxxxx Xxxxx, Xxxxxx, 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.
(d) Payment for and delivery of the Offered Certificates will be
made at the offices of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City time, on June 29, 2005, or
at such other time on the same or such other date, not later than the fifth
business day thereafter, as the Lead Underwriters and the Depositor may agree
upon in writing. The time and date of such payment and delivery is referred to
herein as the "Closing Date".
(e) Payment for the Offered Certificates shall be made by wire
transfer in immediately available funds to the account(s) specified by the
Depositor to the Lead Underwriters against delivery to the nominee of The
Depository Trust Company, for the account of the Underwriters, of one or more
global notes representing the Offered Certificates (collectively, the "Global
Notes"), with any transfer taxes payable in connection with the sale of the
Offered Certificates duly paid by the Depositor. The Global Notes will be made
available for inspection by the Lead Underwriters not later than 1:00 P.M.,
New York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Depositor. The Depositor
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration
Statement has been declared effective by the Commission under the Securities
Act; no order suspending the effectiveness of the Registration Statement has
been issued by the Commission and no proceeding for that purpose has been
initiated or, to the best knowledge of the Depositor, threatened by the
Commission; and the Registration Statement and any amendment thereto, at the
time the Registration Statement became effective, as of the date of the
Prospectus Supplement and as of the date that any such amendment to the
Registration Statement became effective, did and will (during the Prospectus
Delivery Period (as defined below)) comply in all material respects with the
Securities Act, and did not and will not contain any untrue statement
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of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading;
and as of the date of the Prospectus Supplement, as of the date of any
amendment or other supplement to the Prospectus and on the Closing Date, the
Prospectus did and will comply in all material respects with the Securities
Act and did not and will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Depositor makes no representation and warranty
with respect to (i) any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the
Depositor in writing by such Underwriter through the Lead Underwriters
expressly for use in the Registration Statement and the Prospectus and any
amendment or supplement thereto or (ii) the Sellers' Information (as defined
in Section 6(a)) or (iii) the 8-K Information (as defined in Section 7(a));
the conditions to the use by the Depositor of a registration statement on Form
S-3 under the Securities Act, as set forth in the General Instructions to Form
S-3, have been satisfied with respect to the Registration Statement and the
Prospectus.
(b) No Material Adverse Change. 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.
(c) Organization and Good Standing. The Depositor has been duly
organized and is a validly existing organization in good standing under the
laws of its jurisdiction of organization, is duly qualified to do business and
is in good standing as a foreign entity in each jurisdiction in which the
conduct of its business requires such qualification, and has all power and
authority necessary to enter into and perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements and to own or hold its properties and to conduct the business in
which it is engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate, have a
material adverse effect on the transactions contemplated herein or in the
Basic Documents (a "Material Adverse Effect").
(d) Due Authorization. The Depositor has full right, power and
authority to execute and deliver this Agreement, the Certificates, the Pooling
and Servicing Agreement and the other Basic Documents and to perform its
obligations hereunder and thereunder; and all action (corporate and other)
required to be taken for the due and proper authorization, execution and
delivery of this Agreement and each of the Basic Documents and the
consummation of the transactions contemplated hereby and thereby has been duly
and validly taken.
(e) The Pooling and Servicing Agreement. The Pooling and Servicing
Agreement has been duly authorized by the Depositor and, when duly executed
and delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of the Depositor
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability (collectively, the "Enforceability
Exceptions").
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(f) The Certificates. The Offered Certificates have been duly
authorized and, when duly executed, authenticated, issued and delivered as
provided in the Pooling and Servicing Agreement and paid for as provided
herein, will be duly and validly issued and outstanding and will be entitled
to the benefits and security afforded by the Pooling and Servicing Agreement.
(g) Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Depositor and, when duly executed
and delivered in accordance with its terms by or on behalf of each of the
other parties hereto, will constitute a valid and legally binding agreement of
the Depositor enforceable against the Depositor in accordance with its terms,
subject to the Enforceability Exceptions.
(h) Basic Documents. Each of the Basic Documents to which the
Depositor is a party has been duly authorized and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, subject to the
Enforceability Exceptions.
(i) Descriptions of Basic Documents. Each Basic Document conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus.
(j) No Violation or Default. The Depositor is not (i) in violation
of its charter, by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Depositor is a
party or by which the Depositor is bound or to which any of the property or
assets of the Depositor is subject; or (iii) in violation of any law or
statute or any judgment, order or regulation of any court or governmental
agency or body having jurisdiction over the Depositor, or any of its
properties ("Governmental Authority"), except, in the case of clauses (ii) and
(iii) above, for any such default or violation that would not, individually or
in the aggregate, have a Material Adverse Effect.
(k) No Conflicts with Existing Instruments. The execution,
delivery and performance by the Depositor of this Agreement and each of the
Basic Documents, the issuance and sale of the Certificates and compliance by
the Depositor with the terms hereof and thereof and the consummation of the
transactions contemplated by this Agreement and the Basic Documents will not
(i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Depositor pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party
or by which the Depositor is bound or to which any of the property or assets
of the Depositor is subject; (ii) result in any violation of the provisions of
the charter, by-laws or similar organizational documents of the Depositor; or
(iii) result in the violation of any law or statute or any judgment, order or
regulation of any Governmental Authority, except, in the case
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of clauses (i) and (iii) above, for any such conflict, breach or violation
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(l) No Consents Required. No consent, approval, authorization,
order, registration or qualification of or with any Governmental Authority is
required for the execution, delivery and performance by the Depositor of this
Agreement, each of the Basic Documents, the issuance and sale of the
Certificates and compliance by the Depositor with the terms hereof and thereof
and the consummation of the transactions contemplated by this Agreement and
the Basic Documents, except for such consents, approvals, authorizations,
orders and registrations or qualifications as have already been obtained or as
of the Closing Date will have been obtained or such as may be required under
applicable state securities laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters.
(m) Legal Proceedings. Except as described in the Prospectus,
there are no legal, governmental or regulatory investigations, actions, suits
or proceedings pending to which the Depositor is or may be a party or to which
any property of the Depositor is or may be the subject that, individually or
in the aggregate, if determined adversely to the Depositor, could reasonably
be expected to have a Material Adverse Effect; to the best knowledge of the
Depositor, no such investigations, actions, suits or proceedings are
threatened or contemplated by any Governmental Authority or threatened by
others; and there are no statutes, regulations or contracts, indentures or
other documents that are required under the Securities Act to be filed as
exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus and that are not so filed or described.
(n) Independent Accountants. Ernst & Young llp are independent
public accountants with respect to the Depositor as required by the Securities
Act.
(o) Title to Mortgage Loans. At the time of the execution of the
Pooling and Servicing Agreement, the Depositor (i) 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 being transferred to the Trustee
pursuant to the Pooling and Servicing Agreement, free and clear of Liens
granted by or imposed upon the Depositor, and (ii) 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. 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 Offered Certificates
pursuant hereto, each Underwriter will have good title to the Offered
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(p) Investment Company Act. Neither the Depositor nor the trust
fund created under the Pooling and Servicing Agreement (the "Trust Fund") is
(and, after giving effect to the offering and sale of the Certificates and the
application of the proceeds thereof as described in the Prospectus, neither
the Depositor nor the Trust Fund will be) an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, "Investment Company Act").
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(q) Representations in Basic Documents. The representations and
warranties of the Depositor contained in the Basic Documents are true and
correct in all material respects.
(r) Taxes. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the Pooling and
Servicing Agreement, the other Basic Documents and the delivery and sale of
the Certificates (other than such federal, state and local taxes as may be
payable on the income or gain recognized therefrom) have been or will be paid
at or prior to the Closing Date.
(s) Accounting Treatment. Upon the sale to unaffiliated third
parties of Certificates representing at least 10% of the total fair value of
all of the Certificates, the Depositor will, under generally accepted
accounting principles, report the transfer of the Mortgage Loans to the
Trustee in exchange for the Certificates and the sale of the Offered
Certificates to the Underwriters pursuant to this Agreement as a sale of the
interest in the Mortgage Loans evidenced by such Offered Certificates.
(t) Solvency. The Depositor will be solvent at all relevant times
prior to, and will not be rendered insolvent by, the sale of the Offered
Certificates to the Underwriters.
(u) No Intention to Delay or Defraud. The Depositor is not selling
the Offered Certificates to the Underwriters with any intent to hinder, delay
or defraud any of the creditors of the Depositor.
4. Further Agreements of the Depositor. The Depositor covenants and
agrees with each Underwriter that:
(a) Filing of Prospectus. The Depositor will file the final
Prospectus with the Commission within the time periods specified by Rule
424(b) under the Securities Act; and the Depositor will furnish copies of the
Prospectus to the Underwriters in New York City prior to 10:00 A.M., New York
City time, at least three days prior to the Closing Date in such quantities as
the Lead Underwriters may reasonably request.
(b) Delivery of Copies. The Depositor will deliver (i) to the Lead
Underwriters, one copy of the Registration Statement as originally filed and
each amendment thereto, in each case including all exhibits and consents filed
therewith, and (ii) to each Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment thereto, in each
case including all exhibits and consents filed therewith and (B) during the
Prospectus Delivery Period, as many copies of the Prospectus (including all
amendments and supplements thereto) as the Lead Underwriters may reasonably
request. As used herein, the term "Prospectus Delivery Period" means such
period of time after the first date of the public offering of the Offered
Certificates as in the opinion of counsel for the Underwriters a prospectus
relating to the Offered Certificates is required by law to be delivered in
connection with sales of the Offered Certificates by any Underwriter or
dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether before or
after the time that the Registration Statement becomes effective, the
Depositor will furnish to the Lead Underwriters and counsel for the
Underwriters a copy of the proposed amendment or supplement for review
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and will not file any such proposed amendment or supplement to which the Lead
Underwriters reasonably object.
(d) Notice to the Lead Underwriters. The Depositor will advise the
Lead Underwriters promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
the receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional
information; (iv) of the issuance by the Commission of any order suspending
the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose; (v) of the occurrence of any
event within the Prospectus Delivery Period as a result of which the
Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, and (vi) of the
receipt by the Depositor of any notice with respect to any suspension of the
qualification of the Offered Certificates for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and the Depositor will use every reasonable effort to prevent the
issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification of the Offered
Certificates and, if issued, will use every reasonable effort to obtain as
soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances existing when
the Prospectus is delivered to a purchaser, not misleading, or (ii) it is
necessary to amend or supplement the Prospectus to comply with law, the
Depositor will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission and
furnish to the Underwriters and to such dealers as the Lead Underwriters may
designate, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
(f) Blue Sky Compliance. The Depositor will use reasonable efforts
in cooperation with the Underwriters to qualify the Offered Certificates for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Lead Underwriters shall reasonably request and will continue such
qualifications in effect so long as may be reasonably required for
distribution of the Offered Certificates, provided that the Depositor shall
not be required to (i) qualify as a foreign corporation or other entity or as
a dealer in securities in any such jurisdiction where it would not otherwise
be required to so qualify; (ii) file any general consent to service of process
in such jurisdiction; or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject.
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(g) Earning Statement. The Depositor will make generally available
to its security holders as soon as practicable an earning statement that
satisfies the provisions of Section 11(a) of the Securities Act and Rule 158
of the Commission promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Depositor occurring
after the "effective date" (as defined in Rule 158) of the Registration
Statement.
(h) Copies of Reports. So long as the Offered Certificates are
outstanding, the Depositor will furnish, or cause to be furnished, to each
Underwriter (i) copies of each certificate, the annual statements of
compliance and the annual independent certified public accountant's servicing
reports furnished to the Trustee pursuant to the Pooling and Servicing
Agreement by first class mail as soon as practicable after such statements and
reports are furnished to the Trustee; (ii) copies of each amendment to any of
the Basic Documents; and (iii) copies of all reports or other communications
(financial or other) furnished to holders of the Offered Certificates, and
copies of any reports and financial statements furnished to or filed with the
Commission, any governmental or regulatory authority or any national
securities exchange.
(i) Use of Proceeds. The Depositor will apply the net proceeds
from the sale of the Offered Certificates as described in the Registration
Statement and the Prospectus.
(j) Rating Agencies. To the extent, if any, that the ratings
provided with respect to the Offered Certificates by the Rating Agencies are
conditional upon the furnishing of documents or the taking of any other action
by the Depositor, the Depositor shall use its best efforts to furnish such
documents and take any other such action.
(k) Exchange Act Filings. The Depositor will file or cause to be
filed all documents and certifications required to be filed by the Commission
pursuant to the Exchange Act within the time periods required by the Exchange
Act and the rules and regulations thereunder.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Offered Certificates on the Closing Date as provided
herein is subject to the performance by the Depositor of its obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed under the
Securities Act, such post-effective amendment shall have become effective, and
the Lead Underwriters shall have received notice thereof, not later than 5:00
P.M., New York City time, on the date hereof, no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been timely filed with the Commission
under the Securities Act and in accordance with Section 4(a) hereof, and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Lead Underwriters.
(b) Representations and Warranties. The representations and
warranties of the Depositor contained herein shall be true and correct on the
date hereof and on and as of the
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Closing Date; the statements of the Depositor and its officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date; and the Depositor shall have complied with all
agreements and all conditions to be performed or satisfied on its part
hereunder at or prior to the Closing Date.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in
Section 3(b) hereof shall have occurred or shall exist, which event or
condition is not described in the Prospectus (excluding any amendment or
supplement thereto not otherwise available at least two business days prior to
the Closing Date) and the effect of which, in the judgment of the Lead
Underwriters, makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Offered Certificates on the terms and in the
manner contemplated by this Agreement and the Prospectus.
(d) Officer's Certificates. The Lead Underwriters shall have
received on and as of the Closing Date a certificate of an executive officer
of the Depositor satisfactory to the Lead Underwriters (i) confirming that
such officer has carefully reviewed the Registration Statement and the
Prospectus and, to the best knowledge of such officer, the representation set
forth in Section 3(a) hereof is true and correct and (ii) confirming
satisfaction of the conditions set forth in paragraphs (a), (b) and (c) above.
In addition, the Lead Underwriters shall have received from the Secretary or
an assistant secretary of the Depositor (or such other officer of the
Depositor satisfactory to the Lead Underwriters) a certificate, dated the
Closing Date, to the effect that: (i) each individual who, as an officer or
representative of the Depositor, signed this Agreement, the Pooling and
Servicing Agreement, any of the Mortgage Loan Purchase Agreements or any other
document or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, in the Pooling and Servicing
Agreement or in any of the Mortgage Loan Purchase Agreements, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures; and (ii) no event (including,
without limitation, any act or omission on the part of the Depositor) has
occurred since the date of the good standing certificate referred to in
paragraph (q) below which has affected the good standing of the Depositor
under the laws of the State of Delaware. Such certificate shall be accompanied
by true and complete copies (certified as such by the Secretary or an
assistant secretary of the Depositor or such other officer of the Depositor
satisfactory to the Lead Underwriters) of (i) the certificate of incorporation
and by-laws of the Depositor, as in effect on the Closing Date, and (ii) the
resolutions of the Depositor and any required shareholder consent relating to
the transactions contemplated in this Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreements.
(e) Mortgage Loan Purchase Agreements; Indemnification Agreement.
Each of the Mortgage Loan Purchase Agreements and the Indemnification
Agreement dated June 21, 2005, by and between Xxxxxxx, Countrywide, PNC Bank,
the Depositor and the Underwriters (the "Indemnification Agreement") shall
have been executed and delivered.
(f) Comfort Letters. On the date of this Agreement and on the
Closing Date, Xxxxx & Young llp shall have furnished to the Lead Underwriters,
at the request of the
10
Depositor, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory
to the Lead Underwriters.
(g) Opinion of Counsel for the Depositor. (i) Xxxxxx Xxxxxx Xxxxx
& Xxxx llp, counsel for the Depositor, shall have furnished to the Lead
Underwriters, at the request of the Depositor, their written opinion, dated
the Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Lead Underwriters and (ii) Xxxxxx Xxxxxxxx,
in-house counsel to the Depositor, shall have furnished to the Lead
Underwriters, at the request of the Depositor, a written opinion, dated the
Closing Date and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Lead Underwriters.
(h) Opinion of Counsel for the Underwriters. The Lead Underwriters
shall have received on and as of the Closing Date an opinion, dated the
Closing Date and addressed to the Underwriters, of Xxxxxx & Xxxxxxx llp,
counsel for the Underwriters, with respect to such matters as the Lead
Underwriters may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to
pass upon such matters.
(i) Opinion of Counsel for the Master Servicer and the Special
Servicer. Counsel to the Master Servicer and the Special Servicer shall have
furnished to the Lead Underwriters its opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance satisfactory to the Lead
Underwriters.
(j) Reserved.
(k) Opinion of Counsel for the Trustee. Counsel to the Trustee
shall have furnished to the Lead Underwriters its opinion, dated the Closing
Date and addressed to the Underwriters, in form and substance satisfactory to
the Lead Underwriters.
(l) Opinions of Counsel to Sellers. Counsel for each Seller shall
have furnished to the Lead Underwriters its opinion, dated the Closing Date
and addressed to the Underwriters, in form and substance satisfactory to the
Lead Underwriters.
(m) Disclosure Letters. Xxxxxx Xxxxxx Xxxxx & Xxxx llp, counsel
for the Depositor, shall have furnished to the Lead Underwriters a letter,
dated the Closing Date and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Lead Underwriters, regarding the
disclosure in the Registration Statement and the Prospectus. Counsel for each
Seller shall have furnished to the Lead Underwriters a letter, dated the
Closing Date and addressed to the Underwriters, in form and substance
satisfactory to the Lead Underwriters, regarding the disclosure with respect
to such Seller and its Mortgage Loans in the Prospectus Supplement.
(n) Rating Agency Opinions. Each Underwriter shall be addressed in
any opinion from any counsel delivering any written opinion to the Rating
Agencies in connection with the transaction described herein which is not
otherwise described in this Agreement.
(o) Rating Agency Letters. Each Underwriter shall have received
copies of letters from Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies,
11
Inc. and Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies")
stating that the Offered Certificates are rated as set forth on Schedule II
hereto by the Rating Agencies.
(p) No Legal Impediment to Issuance. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any Governmental Authority that would, as of the Closing
Date, prevent the issuance or sale of the Certificates, and no injunction or
order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date, prevent the issuance or sale of the
Certificates.
(q) Good Standing. The Lead Underwriters shall have received on
and as of the Closing Date satisfactory evidence of the good standing of the
Depositor in its jurisdiction of organization and its good standing as a
foreign entity in such other jurisdictions as the Lead Underwriters may
reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate Governmental Authorities of such
jurisdictions.
(r) Additional Documents. On or prior to the Closing Date, the
Depositor shall have furnished to the Underwriters such further opinions,
certificates and documents as the Lead Underwriters may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
6. Indemnification and Contribution. (a) Indemnification of the
Underwriters. The Depositor agrees to indemnify and hold harmless each
Underwriter, its affiliates, directors and officers and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action,
investigations or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (or any amendment or supplement thereto) or any Preliminary
Prospectus, or the attached diskette to the Preliminary Prospectus or the
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with (i)
information with respect to which each Underwriter has agreed to indemnify the
Depositor pursuant to Section 6(b) or (ii) information with respect to which
each Seller has agreed to indemnify the Underwriters pursuant to the
Indemnification Agreement (such information referred to herein as the
"Sellers' Information"); provided, that with respect to any such untrue
statement in or omission from any Preliminary Prospectus, the indemnity
agreement contained in this paragraph (a) shall not inure to the benefit of
any particular Underwriter to the extent that the sale to the person asserting
any such loss, claim, damage or liability was an initial resale by such
Underwriter and any such loss, claim, damage or liability of or with respect
to such Underwriter results from the fact that both (i) to the extent required
by applicable law, a copy of the Prospectus was not sent or given to such
person at or prior to the
12
written confirmation of the sale of such Offered Certificates to such person
and (ii) the untrue statement in or omission from such Preliminary Prospectus
was corrected in the Prospectus unless, in any case, such failure to deliver
the Prospectus was a result of noncompliance by the Depositor with the
provisions of Section 4 hereof.
(b) Indemnification of the Depositor. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Depositor, its
directors, its officers who signed the Registration Statement and each person,
if any, who controls the Depositor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities caused by any untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon and
in conformity with any information relating to such Underwriter furnished to
the Depositor in writing by such Underwriter through the Lead Underwriters
expressly for use in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus (such
information set forth in Section 14 hereof) or (ii) in the 8-K Information (as
defined in Section 7(a)) prepared by such Underwriter (when read in
conjunction with the Prospectus as an integral document and in light of the
circumstances under which such statements in the 8-K Information and the
Prospectus were made), except to the extent that a Seller has agreed to
indemnify the Depositor with respect thereto pursuant to the Indemnification
Agreement; provided, that no such material untrue statement or omission arises
from any error or omission in information relating to the underlying data
regarding the Mortgage Loans or the related mortgagors or mortgaged properties
provided by the Depositor to such Underwriter. Notwithstanding the foregoing,
the indemnity in clause (ii) of the immediately preceding sentence will apply
only if such untrue statement or omission or alleged untrue statement or
omission was not also an untrue statement or omission or alleged untrue
statement or omission in the Prospectus.
(c) Underwriter Indemnification. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless each other
Underwriter, its affiliates, directors and officers and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such indemnified
Underwriter, together with each such affiliate, director, officer and
controlling person in respect thereof, collectively, the "Non-Indemnifying
Underwriter") from and against any and all losses, claims, damages or
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, to which
the Non-Indemnifying Underwriter becomes subject, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of material
fact contained in any 8-K Information or other written materials prepared by
such indemnifying Underwriter, or any member of its selling group, in
connection with the Certificates or in any revision or amendment thereof or
supplement thereto, or any omission or alleged omission (when read in
conjunction with the Prospectus) to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except to the extent that the
Non-Indemnifying Underwriter is indemnified therefor under the indemnity of
the Sellers set forth in the Indemnification Agreement. This agreement will be
in addition to any liability that any Underwriter may otherwise have.
13
(d) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of which
indemnification may be sought pursuant to any of paragraphs (a), (b) and (c)
above, such person (the "Indemnified Person") shall promptly notify the person
against whom such indemnification may be sought (the "Indemnifying Person") in
writing; provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under Section 6(a), (b) and (c)
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve
it from any liability that it may have to an Indemnified Person otherwise than
under this Section 6. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying
Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 6 that the
Indemnifying Person may designate in such proceeding and shall pay the fees
and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall
have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood and agreed that the Indemnifying Person shall not, in connection
with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
any Underwriter, its affiliates and any control persons of such Underwriter
shall be designated in writing by Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated (or, if indemnification is being sought pursuant to paragraph (c)
above, by the Underwriter that comprises the subject Non-Indemnifying
Underwriter), and any such separate firm for the Depositor, its directors, its
officers who signed the Registration Statement and any control persons of the
Depositor shall be designated in writing by the Depositor. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify
each Indemnified Person from and against any loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior
to the date of such settlement. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any
pending or threatened
14
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person in form and substance satisfactory to such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(e) Contribution. If the indemnification provided for in any of
paragraphs (a), (b) and (c) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Indemnifying Person on the one
hand and the Indemnified Person on the other from the offering of the Offered
Certificates or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) but also the relative fault of
the Indemnifying Person on the one hand and the Indemnified Person on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Depositor on
the one hand and each Underwriter on the other shall be deemed to be in the
same respective proportions as the net proceeds (before deducting expenses)
received by the Depositor from the sale of the Offered Certificates and the
total fees, underwriting discounts and commissions received by such
Underwriter in connection therewith bear to the aggregate offering price of
the Offered Certificates. The relative fault of the Depositor on the one hand
and each Underwriter on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by such Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
(f) Limitation on Liability. The Depositor and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (e) above. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in
paragraph (e) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person
in connection with any such action or claim. Notwithstanding the provisions of
this Section 6 (other than paragraph (c)), in no event shall an Underwriter be
required to contribute any amount in excess of the amount by which the total
underwriting fees, discounts and commissions received by such Underwriter with
respect to the offering of the Offered Certificates exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
any untrue or alleged untrue statements or omissions or alleged omissions
contemplated herein. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to
15
contribute pursuant to this Section 6 are several in proportion to their
respective purchase obligations hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any Indemnified Person at law or in equity.
7. 8-K Information and Derived Information. (a) Each Underwriter
may, with the approval of the Lead Underwriters, prepare and provide to
prospective investors in connection with its offering of the Offered
Certificates "Computational Materials," "ABS Term Sheets" and "Collateral Term
Sheets" (collectively, the "8-K Information") described in the No-Action
Letter of May 20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I and certain affiliates, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), and in accordance with the requirements of the No-Action Letter of
February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter, the
"No-Action Letters") only upon satisfaction of the following conditions: (i)
such Underwriter shall comply with the requirements of the No-Action Letters;
(ii) for purposes hereof, "Computational Materials" shall have the meaning
given such term in the No-Action Letters, but with respect to any Underwriter
shall include only those Computational Materials that have been prepared by
such Underwriter for prospective investors and for purposes hereof, "ABS Term
Sheets" and "Collateral Term Sheets" shall have the meanings given such terms
in the PSA Letter but with respect to any Underwriter shall include only those
ABS Term Sheets or Collateral Term Sheets that have been prepared by such
Underwriter for prospective investors; (iii) each Underwriter shall provide to
the Depositor any 8-K Information which is provided to investors no later than
the second business day preceding the date such 8-K Information is required to
be filed pursuant to the applicable No-Action Letters and each Underwriter may
provide copies of the foregoing in a consolidated or aggregated form including
all information required to be filed; and (iv) in the event that the Depositor
or any Underwriter discovers an error in the 8-K Information, the Underwriter
that prepared such material shall prepare corrected 8-K Information and
deliver it to the Depositor for filing.
(b) The Depositor will cause to be filed with the Commission one
or more current reports on Form 8-K with respect to the 8-K Information within
the time period required in the No-Action Letters.
(c) Each Underwriter shall cause Xxxxx & Young llp to furnish the
Depositor with a letter dated no later than the Closing Date, in form and
substance satisfactory to the Depositor, with respect to any 8-K Information
prepared by such Underwriter.
(d) Each Underwriter represents and warrants to, and covenants
with, the Depositor that the 8-K Information prepared by such Underwriter,
when read in conjunction with the Prospectus, is not misleading and not
inaccurate in any material respect (taking into account the assumptions
explicitly set forth or otherwise referred to in the 8-K Information or in the
Prospectus or the Preliminary Prospectus); provided that no Underwriter makes
any
16
representation or warranty as to any 8-K Information for which a Seller has
agreed to indemnify the Depositor pursuant to the Indemnification Agreement.
8. Effectiveness of Agreement. This Agreement shall become effective
upon the execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute
discretion of the Lead Underwriters, by notice to the Depositor, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by any
of the New York Stock Exchange or the over-the-counter market; (ii) a general
moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; (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 Lead Underwriters is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Offered Certificates on the terms and in the manner contemplated by this
Agreement and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any
Underwriter defaults on its obligation to purchase the Offered Certificates
that it has agreed to purchase hereunder, the non-defaulting Underwriters may
in their discretion arrange for the purchase of such Offered Certificates by
other persons satisfactory to the Depositor on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the
non-defaulting Underwriters do not arrange for the purchase of such Offered
Certificates, then the Depositor shall be entitled to a further period of 36
hours within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Offered Certificates on such terms. If other
persons become obligated or agree to purchase the Offered Certificates of a
defaulting Underwriter, either the non-defaulting Underwriters or the
Depositor may postpone the Closing Date for up to five full business days in
order to effect any changes that in the opinion of counsel for the Depositor
or counsel for the Underwriters may be necessary in the Registration Statement
and the Prospectus or in any other document or arrangement, and the Depositor
agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
unless the context otherwise requires, any person not listed in Schedule I
hereto that, pursuant to this Section 10, purchases Offered Certificates that
a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase
of the Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Offered Certificates, then the Depositor shall have the
right to require each non-defaulting Underwriter to purchase the principal
amount of Offered Certificates that such Underwriter agreed to purchase
hereunder plus such Underwriter's pro rata share (based on the principal
amount of Offered Certificates that such Underwriter agreed to purchase
hereunder)
17
of the Offered Certificates of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase
of the Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that
remains unpurchased exceeds one-eleventh of the aggregate principal amount of
all the Offered Certificates, or if the Depositor shall not exercise the right
described in paragraph (b) above, then this Agreement shall terminate without
liability on the part of the non-defaulting Underwriters or the Depositor,
except that the Depositor will continue to be liable for the payment of
expenses as set forth in Section 11 hereof and except that the provisions of
Section 6 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Depositor or any
non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the
Depositor will pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including without limitation, (i)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Certificates and any taxes payable in that connection; (ii)
the costs incident to the preparation, printing and filing under the
Securities Act of the 8-K Information, the Registration Statement, the
Preliminary Prospectus and the Prospectus (including all exhibits, amendments
and supplements thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing this Agreement, each of the Basic Documents and
the Indemnification Agreement; (iv) the fees and expenses of Xxxxxx & Xxxxxxx
llp, counsel for the Underwriters; (v) the fees and expenses of the
Depositor's counsel and independent accountants; (vi) the fees and expenses
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Offered Certificates under
the laws of such jurisdictions as the Lead Underwriters may designate and the
preparation, printing and distribution of a Blue Sky Memorandum (including the
related fees and expenses of counsel for the Underwriters); (vii) any fees
charged by Rating Agencies for rating the Certificates; (viii) the fees and
expenses of the Trustee, the Master Servicer and the Special Servicer
(including related fees and expenses of any counsel to such parties); (ix) all
expenses and application fees incurred in connection with any filing with the
National Association of Securities Dealers, Inc.; (x) all expenses incurred in
connection with any "road show" presentation to potential investors; and (xi)
the costs and expenses of the Depositor in connection with the purchase of the
Mortgage Loans.
(b) If (i) this Agreement is terminated pursuant to Section 9;
(ii) the Depositor for any reason fails to tender the Offered Certificates for
delivery to the Underwriters; or (iii) the Underwriters decline to purchase
the Offered Certificates for any reason permitted under this Agreement, the
Depositor agrees to reimburse the Underwriters for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement and the
offering contemplated hereby.
18
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Depositor, its officers and
directors and any controlling persons referred to herein, the Underwriters,
their directors and officers, and the Underwriters' respective affiliates and
any controlling persons referred to herein, and their respective successors.
Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein. No purchaser of Offered
Certificates from any Underwriter shall be deemed to be a successor merely by
reason of such purchase.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Depositor and the
Underwriters contained in this Agreement or made by or on behalf of the
Depositor or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the
Offered Certificates and shall remain in full force and effect, regardless of
any termination of this Agreement or any investigation made by or on behalf of
the Depositor or the Underwriters.
14. Underwriters' Information. The Depositor and the Underwriters
acknowledge and agree that the only information relating to any Underwriter
that has been furnished to the Depositor in writing by any Underwriter through
the Lead Underwriters expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) and any Preliminary
Prospectus consists of the following information in the Prospectus Supplement
or any preliminary version thereof: the first, second, third, fourth and sixth
sentences of the last paragraph above the bolded names of the Underwriters on
the cover page, the information under the caption "Summary of Prospectus
Supplement--Relevant Parties--Underwriters", the first clause of the second
sentence under the caption "Risk Factors--Risks Related to the Offered
Certificates--The Offered Certificates Will Have Limited Liquidity and May
Experience Fluctuations in Market Value Unrelated to the Performance of the
Mortgage Loans", and the second paragraph, the first, second and third
sentences of the fourth paragraph, the first sentence (but only up to the
semicolon in such sentence) of the sixth paragraph and the eighth paragraph
under the caption "Method of Distribution".
15. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
16. Miscellaneous. (a) Authority of the Representative. Any action
by the Underwriters hereunder may be taken by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated on behalf of the Underwriters, and any such action taken by
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated shall be binding upon the
Underwriters.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices
to the Underwriters shall be given to the Representative at Xxxxxxx Lynch,
Xxxxxx, Xxxxxx & Xxxxx Incorporated, 4 World Financial Center, 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000),
19
Attention: Xxxxx X. Xxxxxxx (with a copy to Xxxxxxx XxXxxxxx, Office of the
General Counsel, 4 World Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000)), and notices to Countrywide
Securities Corporation shall be given to Countrywide Securities Corporation,
0000 Xxxx Xxxxxxx, XX XX-000, Xxxxxxxxx, Xxxxxxxxxx 00000 (fax: 000-000-0000),
Attention: Xxxxxx Xxxxxxxx, and notices to PNC Capital Markets, Inc. shall be
given to PNC Capital Markets, Inc., 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (fax: 000-000-0000), Attention: Xxxxx Xxxxxx
(with a copy to Xxxxxxx Xxxxxxxx, PNC Financial Services Group, One PNC Plaza,
21st Floor, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (fax:
000-000-0000)) and notices to Wachovia Capital Markets, llc shall be given to
Wachovia Capital Markets, llc, NC0166, 301 South College Street, TW-16,
Charlotte, North Carolina 00000-0000 (fax: 000-000-0000), Attention: Xxxxxxx
Xxxxxxxx (with a copy to Xxxx Xxxxxx). Notices to the Depositor shall be given
to it at Xxxxxxx Xxxxx Mortgage Investors, Inc., 4 World Financial Center, 000
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000),
Attention: Xxxxxx X. Xxx (with a copy to Xxxxxxx XxXxxxxx, Office of the
General Counsel, 4 World Financial Center, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000)).
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts
(which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which
together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement. References herein to "Sections," Exhibits,"
and "Schedules" without reference to a document or other source are designated
Sections, Exhibits, and Schedules of this Agreement.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK.]
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If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Title: Executive Vice President,
Chief Officer in Charge of
Commercial Mortgage Securitization
Accepted: June 21, 2005
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
For itself and on behalf of the
several Underwriters listed on Schedule I.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Authorized Signatory
SCHEDULE I
AGGREGATE INITIAL PRINCIPAL AMOUNT OR NOTIONAL AMOUNT
OF CERTIFICATES TO BE PURCHASED AND PURCHASE PRICES*
-----------------------------------------------------------------------------------------------------------------------------------
Purchase
Principal Purchase Principal Purchase Principal Purchase Principal Price of
Amount of Price of Amount of Price of Amount of Price of Amount of Class
Class A-1 Class A-1 Class A-2 Class A-2 Class A-3 Class A-3 Class A-SB A-SB
Underwriter Certificates Certificates Certificates Certificates Certificates Certificates Certificates Certificates
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx $49,900,549 99.998490% $255,425,822 100.545800% $35,133,767 100.544370% $73,715,966 100.545870%
& Xxxxx
Incorporated
-----------------------------------------------------------------------------------------------------------------------------------
Countrywide
Securities $17,792,451 99.998490% $91,074,178 100.545800% $12,527,233 100.544370% $26,284,034 100.545870%
Corporation
-----------------------------------------------------------------------------------------------------------------------------------
PNC Capital $ 0 N/A $ 0 N/A $ 0 N/A $ 0 N/A
Markets, Inc.
-----------------------------------------------------------------------------------------------------------------------------------
Wachovia
Capital $ 0 N/A $ 0 N/A $ 0 N/A $ 0 N/A
Markets, LLC
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Underwriter Principal Purchase Principal Purchase Principal Purchase Principal Purchase
Amount of Price of Amount of Price of Amount of Price of Amount of Price of
Class A-4 Class A-4 Class A-1A Class A-1A Class AM Class AM Class AJ Class AJ
Certificates Certificates Certificates Certificates Certificates Certificates Certificates Certificates
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx
& Xxxxx
Incorporated $369,345,739 100.544190% $94,872,448 100.544480% $128,118,349 100.547630% $84,878,038 100.548080%
-----------------------------------------------------------------------------------------------------------------------------------
Countrywide
Securities
Corporation $131,693,261 100.544190% $33,827,552 100.544480% $45,681,651 100.547630% $30,263,962 100.548080%
-----------------------------------------------------------------------------------------------------------------------------------
PNC Capital
Markets, Inc. $ 0 N/A $ 0 N/A $ 0 N/A $ 0 N/A
-----------------------------------------------------------------------------------------------------------------------------------
Wachovia
Capital $25,000,000 100.544190% $ 0 N/A $ 0 N/A $ 0 N/A
Markets, LLC
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Underwriter Principal Purchase Principal Purchase Principal Purchase Notional Purchase
Amount of Price of Amount of Price of Amount of Price of Amount of Price of
Class B Class B Class C Class C Class D Class D Class XP Class XP
Certificates Certificates Certificates Certificates Certificates Certificates Certificates Certificates
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx
& Xxxxx
Incorporated $27,224,781 100.548680% $11,210,724 100.542730% $24,021,822 100.549490% $1,249,156,852 3.377200%
-----------------------------------------------------------------------------------------------------------------------------------
Countrywide
Securities
Corporation $9,707,219 100.548680% $3,997,276 100.542730% $8,565,178 100.549490% $445,397,148 3.377200%
-----------------------------------------------------------------------------------------------------------------------------------
PNC Capital $ 0 N/A $ 0 N/A $ 0 N/A $ 0 N/A
Markets, Inc.
-----------------------------------------------------------------------------------------------------------------------------------
Wachovia
Capital
Markets, LLC $ 0 N/A $ 0 N/A $ 0 N/A $ 0 N/A
-----------------------------------------------------------------------------------------------------------------------------------
* Excluding accrued interest.
22
SCHEDULE II
-----------
-----------------------------------------------------------------------------
CERTIFICATE RATING
-----------------------------------------------------------------------------
Designation S&P Xxxxx'x
-----------------------------------------------------------------------------
Class A-1 AAA Aaa
-----------------------------------------------------------------------------
Class A-2 AAA Aaa
-----------------------------------------------------------------------------
Class A-3 AAA Aaa
-----------------------------------------------------------------------------
Class A-SB AAA Aaa
-----------------------------------------------------------------------------
Class A-4 AAA Aaa
-----------------------------------------------------------------------------
Class A-1A AAA Aaa
-----------------------------------------------------------------------------
Class AM AAA Aaa
-----------------------------------------------------------------------------
Class AJ AAA Aaa
-----------------------------------------------------------------------------
Class B AA Aa2
-----------------------------------------------------------------------------
Class C AA- Aa3
-----------------------------------------------------------------------------
Class D A A2
-----------------------------------------------------------------------------
Class XP AAA Aaa
-----------------------------------------------------------------------------
23
