EXHIBIT 1.1
ML-CFC COMMERCIAL MORTGAGE TRUST 2006-2,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-2
UNDERWRITING AGREEMENT
June 16, 2006
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 June 16, 2006 (this "Agreement"), between the
Depositor and the Underwriters. 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
1.857% of the Class A-1 Certificates, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated is acting as sole bookrunning manager with respect to the remainder
of the Class A-1 Certificates and all other classes of Offered Certificates.
KeyBanc Capital Markets, a Division of McDonald Investments Inc., Xxxxxxx, Xxxxx
& Co. and Xxxxxx Xxxxxxx & Co. Incorporated 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 and commercial 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 June 16, 2006 (the
"Merrill Mortgage Loan Purchase Agreement") between the Depositor and Merrill.
Certain of the Mortgage Loans (the "Countrywide Mortgage Loans") will be
acquired by the Depositor from Countrywide Commercial Real Estate Finance, Inc.
("Countrywide") pursuant to the mortgage loan purchase agreement, dated June 16,
2006 (the "Countrywide Mortgage Loan Purchase Agreement") between the Depositor
and Countrywide. Certain of the Mortgage Loans (the "KeyBank Mortgage Loans")
will be acquired
by the Depositor from KeyBank National Association ("KeyBank") pursuant to the
mortgage loan purchase agreement, dated June 16, 2006 (the "KeyBank Mortgage
Loan Purchase Agreement") between the Depositor and KeyBank. Merrill,
Countrywide and KeyBank collectively constitute the "Mortgage Loan Sellers"; and
the Merrill Mortgage Loan Purchase Agreement, the Countrywide Mortgage Loan
Purchase Agreement and the KeyBank Mortgage Loan Purchase Agreement collectively
constitute 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, 2006 (the "Pooling and
Servicing Agreement"), between the Depositor, as depositor, Wachovia Bank,
National Association and KeyCorp Real Estate Capital Markets, Inc., as master
servicers, KeyCorp Real Estate Capital Markets, Inc., as special servicer and
LaSalle 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. 333-130408) 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 2:30 p.m. on June 16, 2006 (the "Time of
Sale"), the Depositor had prepared or caused the preparation of the following
information (collectively, the "Time of Sale Information"): the Depositor's Free
Writing Prospectus dated June 8, 2006 (the "Offering Prospectus") (the cover
page of which is attached hereto as Annex A); the Depositor's prospectus dated
May 5, 2006, relating to the Certificates and previously filed as part of the
Registration Statement; the Term Sheet dated June 8, 2006 relating to the
Certificates (the first two pages of which are attached as Annex B hereto); the
Free Writing Prospectus dated June 15, 2006 (the first page of which is attached
as Annex C hereto) and the pricing information annex attached hereto as Annex D.
If, subsequent to the date of this Agreement, the Depositor and the Lead
Underwriter 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
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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.
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 Agreements, each dated as of June 16, 2006, between
the respective Mortgage Loan Seller, the Depositor and the Underwriters (the
"Mortgage Loan Seller Information") or (C) any information for which the
Trustee, either of the Master Servicer or the Special Servicer is obligated to
indemnify the Underwriters, each under separate indemnification agreements dated
as of June 16, 2006 (the "Trustee/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".
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(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/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 (i) the Prospectus, (ii) any document
not constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or
Rule 000 xxxxx xxx 0000 Xxx, (xxx) the Time of Sale Information, and (iv) 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 (iii) and this clause (iv) 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 accordance with
Section 4 (to the extent required thereby). Each such Issuer Free Writing
Prospectus referred to in clause (iv) 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 other Time
of Sale Information) omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Depositor makes no representation and
warranty with respect to (i) any 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, (ii) any Mortgage Loan Seller
Information contained in or omitted from any such Issuer Free Writing Prospectus
or (iii) any Trustee/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
(iv) 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,
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(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) 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 and the Mortgage Loan Purchase Agreements
have been, and as of the Closing Date the Pooling and Servicing Agreement will
be, duly authorized, executed and delivered by the Depositor. This Agreement and
the Mortgage Loan Purchase Agreements constitute, and as of the Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and binding
agreement enforceable against the Depositor in accordance with its terms, except
as such enforceability may be limited by 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
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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 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 (i) 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; (ii) 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; (iii) 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 (iv) 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.
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(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 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 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 (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, except, in the case of
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clauses (ii) and (iii) 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.
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 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, 2006 to but excluding the Closing
Date (defined below).
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 28, 2006,
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 Sidley Austin LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be
agreed upon by the Underwriters and the Depositor.
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
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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 (1) is made in reliance on Rule 134 under the
1933 Act, (2) constitutes a prospectus satisfying the requirements of Rule
430B under the 1933 Act, or (3) 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 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. 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
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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;
(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
10
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 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
11
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.
(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;
12
(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.
(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.
(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 an 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 prior to the publication of a
prospectus in relation to the Certificates which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that such Underwriter may, with effect from and including the
Relevant Implementation Date, make an offer of the Certificates to the public in
that Relevant Member State at any time:
13
(A) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual net
turnover of more than (euro)50,000,000, as shown in its last annual or
consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the Depositor of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of the
Certificates to the public" in relation to any 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.
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
14
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 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".
15
(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 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, 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.
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
16
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:
(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, 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.
17
(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 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 (3) 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 (i), in the case of counsel to the Depositor, the Registration
18
Statement, the Prospectus or the Time of Sale Information, and (ii) 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 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/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
19
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;
(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
20
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 under the laws of the jurisdiction
of its organization, the due authorization, execution and delivery of the
Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in Section 6(b)(i)(C), the enforceability of the
Pooling and Servicing Agreement against such party 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.
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
21
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 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); 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), 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/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 therein, in the light of the circumstances
under which they were made, not misleading, in the Underwriter Information 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
22
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 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.
23
(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 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
24
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.
(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, 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.
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.
25
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 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
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.
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.
26
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 10(a), 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.
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) and also by facsimile transmission 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) or transmitted (in the case of a faxed notice), in each case given or
addressed as aforesaid. 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, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000), Attention: Xxxxx X. Xxxxxxx (with
copies to (a) Xxxxxxx Xxxxx Mortgage Investors, Inc., 4 World Financial Center,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000),
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 (fax: 000-000-0000), Attention: General Counsel for Global
Commercial Real Estate in the Office of the General Counsel); (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 (fax: 000-000-0000), Attention: Xxxxx X. Xxxxxxx (with
copies to (a) Xxxxxxx Xxxxx Mortgage Investors, Inc., 4 World Financial Center,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: 000-000-0000),
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 (fax: 000-000-0000), 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.
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
27
entity. No purchaser of Certificates from the Underwriters shall be deemed to be
a successor by reason merely of such purchase.
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.
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.
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.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Depositor in accordance with its
terms.
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
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Chief Officer in Charge of Commercial
Mortgage Securitization
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
For itself and on behalf of the
several Underwriters listed on Schedule I.
By /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
30
ANNEX A
The First Page of the Depositor's Free Writing Prospectus dated June 8, 2006
31
ANNEX B
The First Page of the Depositor's Term Sheet dated June 8, 2006
32
ANNEX C
The First Page of the Depositor's Free Writing Prospectus dated June 15th, 2006
33
ANNEX D
Pricing Information Annex
34
SCHEDULE I
MLCFC Commercial Mortgage Pass-Through Certificates, Series 2006-1, Class A-1,
Class X-0, Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class AM and Class AJ.
=========================================================================================================================
Underwriters Amount of Certificates to be Purchased Class of Certificates to be Purchased
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $30,796,206 A-1
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $23,048,794 A-1
-------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital Markets, a Division of $0 A-1
McDonald Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. $0 A-1
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 A-1
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $50,421,816 A-2
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $37,737,184 A-2
-------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital Markets, a Division of $0 A-2
McDonald Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. $0 A-2
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 A-2
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $31,159,961 A-3
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $23,321,039 A-3
-------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital Markets, a Division of $0 A-3
McDonald Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. $0 A-3
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 A-3
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $52,564,310 A-SB
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $39,340,690 A-SB
=========================================================================================================================
=========================================================================================================================
KeyBanc Capital Markets, a Division of $0 A-XX
XxXxxxxx Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. $0 A-SB
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 A-SB
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $420,234,232 A-4
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $314,515,768 A-4
-------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital Markets, a Division of $0 A-4
McDonald Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. $0 A-4
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 A-4
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $152,063,880 A-1A
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $113,809,120 A-1A
-------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital Markets, a Division of $0 A-1A
McDonald Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. $0 A-1A
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 A-1A
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $105,320,221 AM
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $78,824,779 AM
-------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital Markets, a Division of $0 AM
McDonald Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co. $0 AM
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 AM
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $78,989,737 AJ
Incorporated
-------------------------------------------------------------------------------------------------------------------------
Countrywide Securities Corporation $59,118,263 AJ
=========================================================================================================================
=========================================================================================================================
KeyBanc Capital Markets, a Division of $0 XX
XxXxxxxx Investments Inc.
-------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Sachs & Co. $0 AJ
-------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated $0 AJ
=========================================================================================================================
SCHEDULE I (CONTINUED)
============================================================================================================
Class Initial Aggregate Approximate Initial Purchase Rating(3)
Designation Principal Amount of Class(1) Pass-Through Rate Price(2) Moody's/S&P
------------------------------------------------------------------------------------------------------------
A-1 $53,845,000 5.77300% 100.2486% Aaa/AAA
------------------------------------------------------------------------------------------------------------
A-2 $88,159,000 5.87800% 100.5462% Aaa/AAA
------------------------------------------------------------------------------------------------------------
A-3 $54,481,000 5.87696% 100.5470% Aaa/AAA
------------------------------------------------------------------------------------------------------------
A-SB $91,905,000 5.87796% 100.5476% Aaa/AAA
------------------------------------------------------------------------------------------------------------
A-4 $734,750,000 5.90996% 100.5475% Aaa/AAA
------------------------------------------------------------------------------------------------------------
A-1A $265,873,000 5.90796% 100.5494% Aaa/AAA
------------------------------------------------------------------------------------------------------------
AM $184,145,000 5.91696% 100.3078% Aaa/AAA
------------------------------------------------------------------------------------------------------------
AJ $138,108,000 5.91696% 100.0163% 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, 2006 to but not including the Closing Date. The purchase price
does not reflect any underwriting discount.
(3) By each of Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies ("S&P").
