Exhibit 1.1
Underwriting Agreement
XXXXXX XXXXXXX CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-IQ16
UNDERWRITING AGREEMENT
November 15, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center, North Tower
New York, New York 10281-1315
RBC Capital Markets Corporation
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Capital I Inc., a Delaware corporation (the
"Depositor"), proposes to sell to Xxxxxx Xxxxxxx & Co. Incorporated, Greenwich
Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and
RBC Capital Markets Corporation (together, the "Underwriters") the Commercial
Mortgage Pass-Through Certificates identified in Schedule I hereto (the
"Certificates") pursuant to this Underwriting Agreement, dated November 15, 2007
(this "Agreement"), between the Depositor and the Underwriters. The Certificates
will evidence beneficial ownership interests in a trust fund (the "Trust Fund")
to be formed by the Depositor and consisting primarily of a pool (the "Mortgage
Pool") of multifamily and commercial mortgage loans (the "Mortgage Loans").
Certain Mortgage Loans (the "MSMCH Mortgage Loans") will be
acquired by the Depositor from Xxxxxx Xxxxxxx Mortgage Capital Holdings LLC
("MSMCH") pursuant to the mortgage loan purchase agreement, dated as of November
1, 2007 (the "MSMCH Mortgage Loan Purchase Agreement"), between the Depositor
and MSMCH. Certain Mortgage Loans (the "PCFII Mortgage Loans") will be acquired
by the Depositor from Principal Commercial Funding II, LLC ("PCFII") pursuant to
the mortgage loan purchase agreement, dated as of November 1, 2007 (the "PCFII
Mortgage Loan Purchase Agreement"), between the Depositor and PCFII. Certain
Mortgage Loans (the "RBC Mortgage Loans") will be acquired by the Depositor from
Royal Bank of Canada ("RBC") pursuant to the mortgage loan purchase agreement,
dated as of November 1, 2007 (the "RBC Mortgage Loan Purchase Agreement"),
between the Depositor and RBC. Certain Mortgage Loans (the "GECC Mortgage
Loans") will be acquired by the Depositor from General Electric Capital
Corporation ("GECC") pursuant to the mortgage loan purchase agreement, dated as
of November 1, 2007 (the "GECC Mortgage Loan Purchase Agreement"), between the
Depositor and GECC. Certain Mortgage Loans (the "NCB Mortgage Loans") will be
acquired by the Depositor from NCB, FSB ("NCB") pursuant to the mortgage loan
purchase agreement, dated as of November 1, 2007 (the "NCB Mortgage Loan
Purchase Agreement"), between the Depositor and NCB. Certain Mortgage Loans (the
"Nationwide Mortgage Loans") will be acquired by the Depositor from Nationwide
Life Insurance Company ("Nationwide") pursuant to the mortgage loan purchase
agreement, dated as of November 1, 2007 (the "Nationwide Mortgage Loan Purchase
Agreement"), between the Depositor and Nationwide. Certain Mortgage Loans (the
"NatCity Mortgage Loans") will be acquired by the Depositor from National City
Bank ("NatCity") pursuant to the mortgage loan purchase agreement, dated as of
November 1, 2007 (the "NatCity Mortgage Loan Purchase Agreement"), between the
Depositor and NatCity.
MSMCH, PCFII, RBC, GECC, NCB, Nationwide and NatCity collectively
constitute the "Mortgage Loan Sellers"; and the MSMCH Mortgage Loan Purchase
Agreement, the PCFII Mortgage Loan Purchase Agreement, the RBC Mortgage Loan
Purchase Agreement, the GECC Mortgage Loan Purchase Agreement, the NCB Mortgage
Loan Purchase Agreement, the Nationwide Mortgage Loan Purchase Agreement and the
NatCity Mortgage Loan Purchase Agreement collectively constitute the "Mortgage
Loan Purchase Agreements." Capitalized terms used herein but not otherwise
defined herein shall have the meanings set forth in the Mortgage Loan Purchase
Agreements or the Pooling and Servicing Agreement (as defined herein), as
applicable.
The Depositor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (No. 333-143623) on Form
S-3 for the registration of the Certificates under the Securities Act of 1933,
as amended (the "1933 Act"), which registration statement has become effective
and copies of which have heretofore been delivered to the Underwriters. The
Depositor proposes to file with the Commission pursuant to Rule 424(b) under the
1933 Act a supplement to the form of prospectus included in such registration
statement relating to the Certificates and the plan of distribution thereof.
Such registration statement, including the exhibits thereto, as amended at the
date hereof, is hereinafter called the "Registration Statement"; the prospectus
included in the Registration Statement, at the time the Registration Statement,
as amended, became effective, or as subsequently filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, is hereinafter called the "Base
Prospectus"; such form of supplement to the Base Prospectus relating to the
Certificates, in the form in which it shall be first filed with the Commission
pursuant to Rule 424 (including the Base Prospectus as so supplemented) is
hereinafter called the "Prospectus Supplement"; and the Base Prospectus and the
Prospectus Supplement, together, are hereinafter called the "Prospectus."
At or prior to the time when sales to purchasers of the
Certificates were first made, which was approximately 2:55 p.m. on November 15,
2007 (the "Time of Sale"), the Depositor had prepared the following information
(collectively, the "Time of Sale Information"): (i) the Depositor's Free Writing
Prospectus dated November 2, 2007 (the cover page of which is attached hereto as
Annex A) to accompany the Depositor's Prospectus dated June 22, 2007, (ii) the
Term Sheet dated November 2, 2007, relating to the Certificates, (iii) the
Supplemental Free Writing Prospectus dated November 15, 2007 and (iv) the
pricing information annex attached hereto as Annex B. If, subsequent to the date
of this Agreement, the Depositor and the Underwriters determine that such
information included an untrue statement of material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and terminate their
old purchase contracts and enter into new purchase contracts with purchasers of
the Certificates, then "Time of Sale Information" will refer to the information
conveyed to purchasers at the time of entry into the first such new purchase
contract, including any information that corrects such material misstatements or
omissions ("Corrective Information") and "Time of Sale" will refer to the time
and date on which such new purchase contracts were 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 the
effective date thereof (the "Effective Date"), and the Prospectus, as of the
date of the Prospectus Supplement, complied in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations thereunder
(the "1933 Act Regulations"); and the information in the Registration Statement,
as of the Effective Date, did not contain any untrue statement of a material
fact and did not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and the information
in the Prospectus, as of the date of the Prospectus Supplement, did not, and as
of the Closing Date (as hereinafter defined) will not, contain an untrue
statement of a material fact and did not and will not omit to state a material
fact necessary in order to make the information therein, in the light of the
circumstances under which they were made, not misleading, provided, however,
that the Depositor makes no representations, warranties or agreements as to (A)
the information contained in the Prospectus or any revision or amendment thereof
or supplement thereto in reliance upon and in conformity with information
furnished in writing to the Depositor by Xxxxxx Xxxxxxx & Co. Incorporated on
behalf of itself or the other Underwriters specifically for use in connection
with the preparation of the Prospectus or any revision or amendment thereof or
supplement thereto (the "Underwriter Information"), or (B) any information
contained in or omitted from the portions of the Prospectus Supplement for which
the Mortgage Loan Sellers are obligated to indemnify the Underwriters,
including, without limitation, where applicable, any such information in the
Prospectus Supplement under the headings "Summary of Prospectus Supplement,"
"Risk Factors" and "Description of the Mortgage Pool," or contained in or
omitted from Appendix I, Appendix II, Appendix III, Appendix IV or Appendix V to
the Prospectus Supplement (collectively, the "Mortgage Loan Seller
Information"), under the Indemnification Agreements, each dated as of November
15, 2007, between the respective Mortgage Loan Seller, the Depositor and the
Underwriters; provided, further, that the Depositor makes no representations or
warranties regarding untrue statements or omissions in the portions of the
Prospectus Supplement under the heading "Yield, Prepayment and Maturity
Considerations" that arise out of or are based upon untrue statements or
omissions in the Mortgage Loan Seller Information. The Underwriter Information
shall consist of the chart, third, fourth and last paragraphs of the section of
the Prospectus Supplement entitled "Use of Proceeds" and the first three
sentences of the last paragraph on the cover page of the Prospectus Supplement.
(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 statements or omissions made in reliance upon
and in conformity with the Underwriter Information or (B) any Mortgage Loan
Seller 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.
(iii) Other than the Prospectus, the Depositor (including its
agents and representatives other than the Underwriters in their capacity as
such) has not made, used, prepared, authorized, approved or referred to and will
not make, use, prepare, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the 0000 Xxx) that constitutes an
offer to sell or solicitation of an offer to buy the Certificates other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the 1933 Act or Rule 134 under the 1933 Act, (ii) the Time of Sale Information,
and (iii) each other written communication of the Depositor or its agents and
representatives approved by the Underwriters either in writing in advance or in
any other manner mutually agreed to by the Underwriters and the Depositor (each
such communication referred to in clause (ii) and this clause (iii) constituting
an "issuer free writing prospectus", as defined in Rule 433(h) under the 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) and did not at the Time of Sale, and
at the Closing Date will not, contain any untrue statements of a material fact
or (when read in conjunction with the other Time of Sale Information) omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Depositor makes no representation and warranty with respect to (i) any
statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (ii) any Mortgage Loan Seller Information contained
in or omitted from any 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.
(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 with corporate power and authority to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of November 1, 2007, among the
Depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar and Authenticating Agent.
(v) The execution, delivery and performance of this Agreement
and the Pooling and Servicing Agreement 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 or the
Pooling and Servicing Agreement.
(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 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, and (B) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law. The Certificates and the Pooling
and Servicing Agreement 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 that have not yet been completed.
(viii) This Agreement has been, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed and delivered
by the Depositor. This Agreement constitutes, and as of the Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and binding
agreement enforceable against the Depositor in accordance with its terms, except
as such enforceability may be limited by the effect of (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in equity or
at law, and (C) public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause
to be conveyed to the Trustee, all of the Depositor's right, title and interest
in and to the Mortgage Loans being transferred to the Trustee pursuant to the
Pooling and Servicing Agreement, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest (collectively
"Liens") granted by or imposed upon the Depositor, (B) will not have assigned to
any person any of its right, title or interest in the Mortgage Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer or cause to be transferred the Mortgage Loans to the
Trustee and to sell the Certificates to the 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 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) 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").
(xiii) 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.
(xiv) 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.
(xv) The trust fund created pursuant to the Pooling and
Servicing Agreement (the "Trust Fund") (other than those portions specified in
the Pooling and Servicing Agreement) will qualify as three 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 REMIC Regular Certificates will constitute "regular interests" in
one REMIC; and the Class R-I, Class R-II and Class R-III Interests will
constitute the classes of "residual interests" in the REMICs; and the portion of
the Trust Fund representing the Excess Interest and the Excess Interest
Sub-account shall be treated as a grantor trust under Subpart E of Part 1 of
Subchapter J of Chapter 1 of Subtitle A of the Code and that the Class EI
Certificates shall represent undivided beneficial interests in the portion of
the Trust Fund consisting of the entitlement to receive Excess Interest.
(xvi) 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 statutes, regulations, 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.
(xvii) 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.
(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 0000 Xxx.
(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 principal
or notional amount as set forth on Schedule I hereto opposite their names. There
will be added to the purchase price of the Certificates an amount equal to
interest accrued thereon pursuant to the terms thereof from the Cut-off Date to
but excluding the Closing Date.
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 November 29,
2007, 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 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 Cadwalader, Xxxxxxxxxx &
Xxxx LLP, Xxx Xxxxx Xxxxxxxxx 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) The Underwriters shall provide the Underwriter Information to
the Depositor expressly for use in the Prospectus.
(b) 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 a 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.
(c) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses (as defined below), or portions thereof, subject to the following
conditions (to which such conditions each Underwriter agrees, severally and not
jointly, with respect to those Free Writing Prospectuses prepared by such
Underwriter (provided that no Underwriter shall be responsible for any breach of
the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver 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 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 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 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
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 to be furnished to the
Depositor by such Underwriter pursuant to Section 4(c)(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 required to be provided by it to
the Depositor pursuant to Section 4(c)(ii) did not, as of the Time
of Sale, and will not as of the Closing Date, include any untrue
statement of a material fact or omit any material fact necessary to
make the statements contained therein (when read in conjunction with
the Time of Sale Information), in light of the circumstances under
which they were made, not misleading; provided however, that such
Underwriter makes no representation to the extent such misstatements
or omissions were the result of any inaccurate Issuer Information,
which information was not corrected by Corrective Information
subsequently supplied by the Depositor or any Mortgage Loan Seller
to such Underwriter within a reasonable period of time prior to the
Time of Sale.
(v) The Depositor agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof
delivered by any Underwriter to the Depositor pursuant to Section
4(c)(ii); and
(C) Any Free Writing Prospectus for which the Depositor
or any person acting on its behalf provided, authorized or
approved information that is prepared and published or
disseminated by a person unaffiliated with the Depositor or any
other offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating
communications.
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(c)(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:
(A) Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final terms of the Certificates shall be filed by the Depositor
with the Commission within two days of the later of the date such
final terms have been established for all classes of Certificates
and the date of first use;
(B) Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Depositor with the
Commission not later than the later of the due date for filing
the final Prospectus relating to the Certificates pursuant to
Rule 424(b) under the 1933 Act or two business days after the
first use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed
pursuant to Section 4(c)(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(c)(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(c)(v) and
4(c)(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 trust, and this offering. You may get
these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the
prospectus if you request it by calling 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;
(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.
(d) Each Underwriter shall have been deemed to have represented,
warranted and agreed that:
(i) the Certificates may not be offered or sold in or into the
United Kingdom except in circumstances which do not constitute an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995;
(ii) if not an authorized person under the Financial Services
and Markets Act 2000 (the "FSMA"), it has not and will not offer or
sell any Certificates except to persons who (a) are outside the
United Kingdom, or (b) have professional experience in matters
relating to investments or (c) fall within article 49(2)(a) through
(d) ("high net worth companies, unincorporated associations, etc.")
of the Financial Services and Markets Xxx 0000 (Financial
Promotions) Order 2001;
(iii) if an authorized person under the FSMA, it has not and
will not offer or sell any Certificates except to persons who (a)
are outside the United Kingdom, or (b) have professional experience
in participating in unregulated collective investment schemes, or
(c) fall within article 22(2)(a) through (d) ("high net worth
companies, unincorporated associations etc") of the Financial
Services and Markets Xxx 0000 (Promotion of Collective Investment
Schemes) (Exemptions) Order 2001;
(iv) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the issue
or sale of any Certificates in circumstances in which Section 21 (1)
of the FSMA does not apply to the Depositor; and
(v) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Certificates in, from or otherwise involving the
United Kingdom.
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 each Underwriter notice of (i)
any request by the Commission for any amendment of the Registration Statement or
the Prospectus or for any additional information relating to the Certificates,
(ii) any written notification received by the Depositor of suspension of
qualification of the Certificates for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (iii) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or, to the knowledge of the Depositor, threatening
any proceeding for that purpose. The Depositor will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. In addition, the Depositor shall correct any
circumstances described in (i) or (ii) above as of the Closing Date to the
extent that any such circumstance would result in potential liability of any
Underwriter in connection with the sale of any Certificate.
(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 the 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 deliver to each Underwriter a copy of the
Registration Statement as originally filed and of each amendment thereto prior
to the date hereof (including exhibits filed therewith or incorporated by
reference therein).
(e) The Depositor will furnish to each Underwriter, from time to
time during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus and each Free Writing Prospectus (as amended or supplemented) as such
Underwriter 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.
(f) 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 each Underwriter a reasonable number of copies of such amendment or
supplement.
(g) 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 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.
(h) 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."
(i) 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 6(b)(i)(I) of this Agreement,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the "blue sky" memorandum, (v) the cost of printing the Certificates, (vi) the
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 and/or distributed by the Underwriters, in connection with
the purchase and sale of the Certificates.
(j) The Depositor will file with the Commission within fifteen days
of the issuance of the Certificates a report on Form 8-K setting forth specific
information concerning the Certificates and the Mortgage Pool to the extent that
such information is not set forth in the Prospectus. The Depositor shall obtain
a letter from Deloitte & Touche LLP, certified public accountants, satisfactory
in form and substance to the Depositor and the Underwriters, to the effect that
such accountants have performed certain specified procedures, all of which have
been agreed to by the Depositor, as a result of which they have determined that
the information included in the 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 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 Writing Prospectus required to be filed by
the Depositor pursuant to Section 4(c) 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, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel
to the Depositor, in form and substance satisfactory to such
Underwriter, substantially to the effect that:
(A) The Depositor is a corporation in good standing
under the laws of the State of Delaware.
(B) The Depositor has corporate power and authority to
enter into and perform its obligations under this Agreement
and the Pooling and Servicing Agreement.
(C) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by
the Depositor. Upon due authorization, execution and delivery
by the other parties thereto, the Pooling and Servicing
Agreement will constitute a valid, legal and binding agreement
of the Depositor, enforceable against the Depositor in
accordance with its terms, except as enforceability may be
limited by (1) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors generally
and (2) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law.
(D) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
(E) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and
not withdrawn, and no proceedings for that purpose have been
initiated or threatened by the Commission.
(F) The Registration Statement, at the time it became
effective, and the Prospectus, as of the date of the
Prospectus Supplement, (other than any financial or
statistical information included or incorporated by reference
therein, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(G) To such counsel's knowledge and information, there
are no material contracts, indentures, or other documents of
the Depositor required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(H) The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939, as
amended, and the issuance and sale of the Certificates in the
manner contemplated by the Prospectus will not cause the
Depositor or the Trust Fund to be subject to registration or
regulation as an "investment company" under the Investment
Company Act of 1940, as amended.
(I) No consent, approval, authorization, or order of any
State of New York or federal court or governmental agency or
body is required for the consummation by the Depositor of the
transactions contemplated herein, except (1) such as have been
obtained, (2) such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and sale
of the Certificates by the 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 or the Pooling and Servicing Agreement, will
conflict with or result in a breach or violation of any term
or provision of, or constitute a default (or an event which
with the passing of time or notification or both, would
constitute a default) under, (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, 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 no facts have come to such counsel's attention that would
lead it to believe that (a) in the case of counsel to the Depositor,
the Registration Statement as of the time it became effective, the
Prospectus as of the date thereof or as of the Closing Date, or the
Time of Sale Information as of the date thereof or as of the Closing
Date or (b) in the case of counsel to the Underwriters, the
Prospectus as of the date thereof or as of the Closing Date, or the
Time of Sale Information as of the date thereof or as of the Closing
Date (in each case, other than any financial statements and
supporting schedules and statistical and/or accounting information
included therein, as to which no statement need be made), 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 Servicers,
the Trustee, the Paying Agent and the Certificate Registrar, and
such opinion may be qualified that, with limited exception, such
counsel will not have reviewed any loan documents.
Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Such opinion(s) may be qualified as an opinion only
on the General Corporation Law of the State of Delaware, the laws of the State
of New York and the federal law of the United States.
(c) On the Closing Date, each Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA counsel to
the Depositor (i) regarding the qualification of each of REMIC I, REMIC II and
REMIC III as a real estate mortgage investment conduit within the meaning of
Sections 860A through 860G of the Internal Revenue Code of 1986 (the "Code"),
(ii) that the portion of the Trust representing the Excess Interest and the
Excess Interest Sub-account shall be treated as a grantor trust under Subpart E
of Part 1 of Subchapter J of Chapter 1 of Subtitle A of the Code and that the
Class EI Certificates shall represent undivided beneficial interests in the
portion of the Trust consisting of the entitlement to receive Excess Interest,
and (iii) to the effect that the statements in the Base Prospectus and the
Prospectus Supplement under the headings "Material Federal Income Tax
Consequences" and "ERISA Considerations," to the extent that they constitute
matters of State of New York or federal law or legal conclusions with respect
thereto, while not purporting to discuss all possible consequences of investment
in the Certificates, are correct in all material respects with respect to those
consequences or matters that are discussed therein. Such opinion(s) may express
its (their) reliance as to factual matters on the representations and warranties
made by, and on certificates or other documents furnished by officers and/or
authorized representatives of, the parties to this Agreement and the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion(s) may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered. Such opinion(s) may
be qualified as an opinion only on the federal tax and ERISA law of the United
States.
(d) The Depositor shall have delivered to each Underwriter a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of the Depositor to the effect that the signer of such
certificate has examined, or has relied upon an examination conducted by
appropriate persons authorized by him or her of, this Agreement, the Prospectus,
the Pooling and Servicing Agreement and various other closing documents, and
that, to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of the Depositor in
this Agreement and the Pooling and Servicing Agreement are true and
correct in all material respects;
(ii) the Depositor has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part
to be performed or satisfied hereunder at or prior to the Closing
Date;
(iii) since 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) MSMCH shall have delivered to each Underwriter a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of MSMCH to the effect that the signer of such certificate has
examined, or has relied upon an examination conducted by appropriate persons
authorized by him or her of, the Prospectus, the Pooling and Servicing
Agreement, the MSMCH Mortgage Loan Purchase Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(i) the representations and warranties of MSMCH in the MSMCH
Mortgage Loan Purchase Agreement are true and correct in all
material respects except as indicated on Schedule A thereto;
(ii) MSMCH 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 MSMCH 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 MSMCH.
(f) PCFII shall have delivered to each Underwriter a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of PCFII to the effect that the signer of such certificate has
examined, or has relied upon an examination conducted by appropriate persons
authorized by him or her of, the Prospectus, the Pooling and Servicing
Agreement, the PCFII Mortgage Loan Purchase Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(i) the representations and warranties of PCFII in the PCFII
Mortgage Loan Purchase Agreement are true and correct in all
material respects except as indicated on Schedule A thereto;
(ii) PCFII 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 PCFII 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 PCFII.
(g) RBC shall have delivered to each Underwriter a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of RBC to the effect that the signer of such certificate has examined,
or has relied upon an examination conducted by appropriate persons authorized by
him or her of, the Prospectus, the Pooling and Servicing Agreement, the RBC
Mortgage Loan Purchase Agreement and various other closing documents, and that,
to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of RBC in the RBC
Mortgage Loan Purchase Agreement are true and correct in all
material respects except as indicated on Schedule A thereto;
(ii) RBC 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 RBC 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 RBC.
(h) GECC shall have delivered to each Underwriter a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of GECC to the effect that the signer of such certificate has
examined, or has relied upon an examination conducted by appropriate persons
authorized by him or her of, the Prospectus, the Pooling and Servicing
Agreement, the GECC Mortgage Loan Purchase Agreement and various other closing
documents, and that, to the best of his or her knowledge after reasonable
investigation:
(i) the representations and warranties of GECC in the GECC
Mortgage Loan Purchase Agreement are true and correct in all
material respects except as indicated on Schedule A thereto;
(ii) GECC 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 GECC 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 GECC.
(i) NatCity shall have delivered to each Underwriter a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of NatCity to the effect that the signer of such certificate has
examined, or has relied upon an examination conducted by appropriate persons
authorized by him or her of, the Prospectus, the Pooling and Servicing
Agreement, the NatCity Mortgage Loan Purchase Agreement and various other
closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(i) the representations and warranties of NatCity in the
NatCity Mortgage Loan Purchase Agreement are true and correct in all
material respects except as indicated on Schedule A thereto;
(ii) NatCity 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 NatCity 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 NatCity.
(j) NCB shall have delivered to each Underwriter a certificate,
dated the Closing Date, of the President, a Senior Vice President or a Vice
President of NCB to the effect that the signer of such certificate has examined,
or has relied upon an examination conducted by appropriate persons authorized by
him or her of, the Prospectus, the Pooling and Servicing Agreement, the NCB
Mortgage Loan Purchase Agreement and various other closing documents, and that,
to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of NCB in the NCB
Mortgage Loan Purchase Agreement are true and correct in all
material respects except as indicated on Schedule A thereto;
(ii) NCB 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 NCB 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 NCB.
(k) Nationwide shall have delivered to each Underwriter a
certificate, dated the Closing Date, of the President, a Senior Vice President
or a Vice President of Nationwide to the effect that the signer of such
certificate has examined, or has relied upon an examination conducted by
appropriate persons authorized by him or her of, the Prospectus, the Pooling and
Servicing Agreement, the Nationwide Mortgage Loan Purchase Agreement and various
other closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(i) the representations and warranties of Nationwide in the
Nationwide Mortgage Loan Purchase Agreement are true and correct in
all material respects except as indicated on Schedule A thereto;
(ii) Nationwide 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 Nationwide 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 Nationwide.
(l) The Depositor and each Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated the Closing
Date, in form and substance satisfactory to such Underwriter, stating in effect
that:
(i) they have performed certain specified procedures as a
result of which they have determined that certain information of an
accounting, financial or statistical nature set forth in the
Prospectus Supplement agrees with the data sheet or computer tape
prepared by or on behalf of each Mortgage Loan Seller, unless
otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet
or computer tape referred to in the immediately preceding clause (i)
to information contained in the Mortgage Files and in such other
sources as shall be specified by them, and found such data and
information to be in agreement, unless otherwise noted in such
letter.
(m) Each Underwriter shall have received the accountants' letters
specified in Section 5(j) of this Agreement.
(n) Each Underwriter shall have received, with respect to each of
the Master Servicers, the Special Servicers, the Trustee and the Paying Agent, a
favorable opinion of counsel, dated the Closing Date, addressing the valid
existence of such party under the laws of the jurisdiction of its organization,
the due authorization, execution and delivery of the Pooling and Servicing
Agreement by such party and, subject to the same limitations as set forth in
Section 6(b)(i)(C) of this Agreement, the enforceability of the Pooling and
Servicing Agreement against such party and such other opinions as shall be
reasonably requested by such Underwriter including an opinion that certain
disclosure relating to such parties complies as to form with the applicable
requirements of Regulation AB. 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.
(o) 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 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.
(p) The Mortgage Loan Sellers shall have sold the Mortgage Loans to
the Depositor pursuant to and in accordance with the Mortgage Loan Purchase
Agreements.
(q) The Certificates shall have been assigned ratings no less than
those set forth on Schedule I and such ratings shall not have been withdrawn,
suspended or qualified.
(r) The Depositor shall have furnished to the Underwriters such
further information, certificates and documents as the 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 Underwriters and their 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 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 the Prospectus 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 (ii) any untrue
statement or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus or any Issuer Information contained in any Underwriter
Free Writing Prospectus, 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 as to which such
Underwriter has agreed to indemnify the Depositor pursuant to Section 7(b), the
Depositor shall have no obligation to so indemnify and hold harmless; and
provided, further, that the Depositor shall have no obligation to so indemnify
and hold harmless to the extent that the Liabilities arise out of or are based
upon an untrue statement or omission or an alleged untrue statement or omission
with respect to the Mortgage Loan Seller Information (including, without
limitation, untrue statements or omissions in the portions of the Prospectus
Supplement and any Free Writing Prospectus under the heading "Yield, Prepayment
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).
(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
(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, or omissions or alleged
omissions to state a material fact necessary 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, in any Underwriter
Free Writing Prospectus prepared by or on behalf of such Underwriter; provided,
that no Underwriter shall be obligated to so indemnify and hold harmless (A) to
the extent such Liabilities are caused by a misstatement or omission resulting
from an error or omission in the Issuer Information which was not corrected by
Corrective Information subsequently supplied by the Depositor or any Mortgage
Loan Seller to any Underwriter within a reasonable period of time prior to the
Time of Sale or (B) 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 paragraphs (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. To the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from the indemnified party, the indemnifying party may elect to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel, (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 two sentences, if
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under this subsection, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. If an
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if such
settlement provides for an unconditional release of the indemnified party,
without any admission of fault, culpability or failure to act or on behalf of
the indemnified party, in connection with all matters relating to the proceeding
that have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient 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 affected 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 an 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 total
underwriting discounts and commissions received by 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 an 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. In the event that any expenses so
paid by the indemnifying party are subsequently determined to not be required to
be borne by the indemnifying party hereunder, the party which received such
payment shall promptly refund the amount so paid to the party which made such
payment. Notwithstanding the provisions of subsection (d) above or this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions
and other fees received by such Underwriter in connection with the offering of
the Certificates exceeds the amount of damages that such Underwriter has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Depositor,
an Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter, 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 (such
other Underwriters and its controlling persons, collectively, 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 any member of its selling group, in connection with
the Certificates or in any revision or amendment thereof or supplement thereto,
(ii) the failure of such Indemnifying Underwriter, or any member of its selling
group, to comply with any provision of Sections 4(c) or 9 of this Agreement, 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, or (iii) insofar as it relates to such
Indemnifying Underwriter, any untrue statement (or alleged untrue statement) of
material fact or omission (or alleged omission) contained in the Underwriter
Information. 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.
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 (on a pro rata basis according to the
respective principal amounts of Certificates that such other Underwriters
otherwise agreed to purchase hereunder) to purchase the Certificates which such
defaulting Underwriter agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Certificates that any
Underwriter has agreed to purchase pursuant to Section 2 of this Agreement be
increased pursuant to this Section 9 of this Agreement by an amount in excess of
one-ninth of such principal amount of Certificates, without the written consent
of such Underwriter, and provided further that no Underwriter shall be obligated
under this Section 9 of this Agreement 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. In any such case either such non-defaulting Underwriter 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) Any Underwriter may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to the Closing
Date if the sale of the Certificates provided for herein is not consummated
because of any failure or refusal on the part of the Depositor to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Depositor shall be unable to perform its obligations under this
Agreement.
(b) Any Underwriter may terminate its obligations under this
Agreement in the absolute discretion of such Underwriter, by notice given to the
Depositor, if (A) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Depositor or its affiliates shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal or State of
New York authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis, or major disruption of settlement or clearance of securities in the
United States that, in the judgment of such Underwriter, is material and adverse
and (B) in the case of any of the events specified in clauses (A)(i) through
(iv) above, such event singly or together with any other such event, makes it,
in the judgment of such Underwriter, impracticable to market the Certificates on
the terms and in the manner contemplated in the Time of Sale Information and
Prospectus.
(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. No Fiduciary Duty.
The Depositor acknowledges that in connection with the offering of
the Certificates: (a) the Underwriters have acted at arms-length, are not agents
of, and owe no fiduciary duties to, the Depositor or any other person, (b) the
Underwriters owe the Depositor only those duties and obligations set forth in
this Agreement and (c) the Underwriters may have interests that differ from
those of the Depositor. The Depositor waives to the full extent permitted by
applicable law any claims it may have against the Underwriters arising from an
alleged breach of fiduciary duty in connection with the offering of the
Certificates.
12. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to Xxxxxx Xxxxxxx
& Co. Incorporated shall be directed to Xxxxxx Xxxxxxx & Co. Incorporated 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx; to the Depositor
shall be directed to Xxxxxx Xxxxxxx Capital I Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, with a copy to X.X. Xxxxxx, Facsimile
No.: (000) 000-0000; to Greenwich Capital Markets, Inc. shall be directed to
Greenwich Capital Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxxxx X. Xxxx, Facsimile No.: (000) 000-0000; to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated shall be directed to Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, 4 World Financial Center, 16th Floor, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx or Director,
CMBS Securitization, with a copy to Xxxxxx Xxxxxxxx, Esq., Office of the General
Counsel, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, 4 World Financial
Center, 12th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and to RBC
Capital Markets Corporation shall be directed to RBC Capital Markets
Corporation, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxxx, with a copy to RBC Capital Markets Corporation, Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Legal - CMBS; and as to any party, to such
other address as may hereafter be furnished by such party to the others in
writing.
13. 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 Sections 7 and 8 of this Agreement and their respective
successors, heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Depositor
and their respective successors, and said controlling persons and officers and
directors and their respective successors, heirs and legal representatives, and
for the benefit of no other person or entity. No purchaser of Certificates from
the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
14. 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.
15. Miscellaneous.
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 and the Underwriters with respect to the
preparation of the Prospectus, Prospectus Supplement and Private Placement
Memorandum, and the conduct of the offering, and the purchase and sale of the
Certificates.
Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such amendment, waiver, discharge or termination is sought.
This Agreement may be signed in any number of duplicate originals,
each of which shall be deemed an original, which taken together shall constitute
one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Depositor in accordance with its
terms.
Very truly yours,
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
[Signatures continue on following page]
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Friend
-------------------------------------------
Name: Xxxxxx X. Friend
Title: Vice President
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
RBC CAPITAL MARKETS CORPORATION
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Authorized Signatory
ANNEX A
The First Page of the Depositor's Free Writing
Prospectus dated November 2, 2007
ANNEX B
Pricing Information Annex
SCHEDULE I
Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ16, Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
============================================= =========================================== ==========================================
Underwriters Amount of Certificates To Be Purchased Class of Certificates To Be Purchased
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-1
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-1
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-1
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-1
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-1A
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-1A
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-1A
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-1A
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-2
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-2
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-2
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-2
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-3
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-3
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-3
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-3
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-4
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-4
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-4
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-4
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-M
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-M
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-M
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-M
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-MFL
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-MFL
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-MFL
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-MFL
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-MA
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-MA
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-MA
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-MA
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-J
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-J
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx X-X
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-J
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-JFL
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-JFL
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-JFL
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-JFL
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxx Xxxxxxx & Co. Incorporated A-JA
--------------------------------------------- ------------------------------------------- ------------------------------------------
Greenwich Capital Markets, Inc. A-JA
--------------------------------------------- ------------------------------------------- ------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx A-JA
Incorporated
--------------------------------------------- ------------------------------------------- ------------------------------------------
RBC Capital Markets Corporation A-JA
--------------------------------------------- ------------------------------------------- ------------------------------------------
Total
============================================= =========================================== ==========================================
SCHEDULE I (CONTINUED)
============================ ================================ ======================= ===================== ========================
Class Initial Aggregate Initial Purchase Rating(3)
Designation Principal Amount of Class(1) Pass-Through Rate Price(2) (Fitch/S&P/DBRS)
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-1 $ 51,900,000 5.320% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-1A $ 314,528,000 5.688% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-2 $ 91,100,000 5.623% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-3 $ 83,000,000 5.852% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-4 $1,276,553,000 5.809% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-M $ 194,651,000 6.111% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-MFL $ 20,000,000 Libor + 1.130% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-MA $ 44,932,000 6.107% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-J $ 130,988,000 6.153% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-JFL $ 30,000,000 Libor + 1.450% AAA/AAA/AAA
---------------------------- -------------------------------- ----------------------- --------------------- ------------------------
A-JA $ 33,699,000 6.153% AAA/AAA/AAA
============================ ================================ ======================= ===================== ========================
-----------------------
(1) Subject to a variance of plus or minus 5%.
(2) Expressed as a percentage of the aggregate stated amount of the relevant
class of Certificates to be purchased. The purchase price for each class of
the Certificates will not include accrued interest at the initial
Pass-Through Rate therefor on the aggregate stated amount thereof to be
purchased from the Cut-Off Date to but not including the Closing Date and
does not reflect the underwriting discount.
(3) By each of Fitch, Inc. ("Fitch"), Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and DBRS Inc. ("DBRS").
