EXHIBIT 1.1
EXECUTION COPY
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
Commercial Mortgage Pass-Through Certificates, Series 2004-KEY2
Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D and Class E
Underwriting Agreement
September 17, 2004
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representative of the several
Underwriters listed on Schedule I hereto
c/▇ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., a Delaware corporation (the
"DEPOSITOR"), proposes to sell to the several Underwriters listed on Schedule I
(the "UNDERWRITERS"), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated is acting as representative (the "REPRESENTATIVE"), the principal
amount or notional amount, as the case may be, of Commercial Mortgage
Pass-Through Certificates, Series 2004-KEY2, Classes A-1, A-2, A-3, A-4, B, C, D
and E (the "OFFERED CERTIFICATES") as set forth in Schedule ▇. ▇▇▇▇▇▇▇ Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇.▇. ▇▇▇▇▇▇ Securities Inc. are acting
as joint bookrunning managers with respect to the offering of the Offered
Certificates (in such capacity, the "LEAD UNDERWRITERS"). KeyBanc Capital
Markets, a Division of McDonald Investments Inc. and Deutsche Bank Securities
Inc. will act as co-managers. The Offered Certificates, together with the
Commercial Mortgage Pass-Through Certificates, Series 2004-KEY2, Classes A-1A,
F, G, H, J, K, L, M, N, P, Q, XC, XP, R-LR, R-I, R-II, DA and Z (the "PRIVATE
CERTIFICATES") are referred to herein as the "CERTIFICATES." The Certificates
will represent beneficial interests in, among other things, a pool of mortgage
loans described in the Prospectus referred to below (the "MORTGAGE LOANS") and
certain moneys received under each Mortgage Loan after the related due date for
such Mortgage Loan in September 2004 (or with respect to those Mortgage Loans
that were originated in August 2004 and have their first due date in October
2004, September 1, 2004) (in any case, the "CUT-OFF DATE"). The Certificates
will be issued pursuant to the provisions of a Pooling and Servicing Agreement
to be dated as of September 1, 2004 (the "POOLING AND SERVICING AGREEMENT"),
between the Depositor, KeyCorp Real Estate Capital Markets, Inc., as master
servicer (in such capacity, the "MASTER SERVICER"), and as special servicer (in
such capacity, the "SPECIAL SERVICER"), LaSalle Bank National Association, as
trustee (the "TRUSTEE"), and ABN AMRO Bank N.V., as fiscal agent.
The Depositor hereby confirms its agreement with the several Underwriters
concerning
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the purchase and sale of the Offered Certificates, as follows:
1. Registration Statement. The Depositor has prepared and filed with the
Securities and Exchange Commission (the "Commission"), in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "SECURITIES ACT"), a
registration statement on Form S-3 (No. 333-116820), including a prospectus,
relating to the Offered Certificates. The registration statement as amended at
the time when it became effective, or, if a post-effective amendment is filed
with respect thereto, as amended by such post-effective amendment at the time of
its effectiveness, is referred to in this Agreement as the "REGISTRATION
STATEMENT". The Depositor also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Offered Certificates (the "PROSPECTUS SUPPLEMENT").
The related prospectus covering the Offered Certificates in the form first used
to confirm sales of the Offered Certificates is hereinafter referred to as the
"BASIC PROSPECTUS", and the Basic Prospectus as supplemented by the Prospectus
Supplement in the form first used to confirm sales of the Offered Certificates
is hereinafter referred to as the "PROSPECTUS". Any reference in this Agreement
to the Registration Statement, any preliminary prospectus used in connection
with the offering of the Offered Certificates (the "PRELIMINARY PROSPECTUS") or
the Prospectus shall be deemed to refer to and include any exhibits thereto and
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the effective date of the Registration Statement
or the date of such Preliminary Prospectus or the Prospectus, as the case may
be, and any reference to "amend," "amendment" or "supplement" with respect to
the Registration Statement, any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include any documents filed as of the Closing Date (as
defined below) under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "EXCHANGE
ACT") that are deemed to be incorporated by reference therein.
When used in this Agreement, "BASIC DOCUMENTS" shall mean (i) the Pooling
and Servicing Agreement, (ii) the Certificates, (iii) the Mortgage Loan Purchase
Agreement, dated as of September 17, 2004, between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Lending, Inc. ("▇▇▇▇▇▇▇") and the Depositor (the "▇▇▇▇▇▇▇ MORTGAGE LOAN PURCHASE
AGREEMENT"), (iv) the Mortgage Loan Purchase Agreement, dated as of September
17, 2004, between KeyBank National Association ("KEYBANK") and the Depositor
(the "KEYBANK MORTGAGE LOAN PURCHASE AGREEMENT"), (v) the Mortgage Loan Purchase
Agreement, dated as of September 17, 2004, between JPMorgan Chase Bank
("JPMORGAN") and the Depositor (the "JPMORGAN MORTGAGE LOAN PURCHASE AGREEMENT"
and, together with the ▇▇▇▇▇▇▇ Mortgage Loan Purchase Agreement and the KeyBank
Mortgage Loan Purchase Agreement, the "MORTGAGE LOAN PURCHASE AGREEMENTS"), and
(vi) any other contract, agreement or instrument which is or is to be entered
into by the Depositor on the Closing Date or otherwise in connection with any of
the foregoing or this Agreement. ▇▇▇▇▇▇▇, KeyBank and JPMorgan are collectively
referred to herein as the "SELLERS". To the extent not defined herein,
capitalized terms used herein have the meanings assigned to such terms in the
Pooling and Servicing Agreement.
2. Purchase of the Offered Certificates by the Underwriters. (a) The
Depositor agrees to sell the Offered Certificates to the several Underwriters as
provided in this Agreement, and each Underwriter, on the basis of the
representations, warranties and agreements set forth
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herein and subject to the conditions set forth herein, agrees, severally and not
jointly, to purchase from the Depositor, the respective principal amount or
notional amount, as the case may be, of each class of the Offered Certificates
set forth opposite such Underwriter's name in Schedule I at the Purchase Price
set forth in Schedule I, plus, if applicable, accrued interest on the actual
principal amount or notional amount thereof at the applicable Pass-Through Rate
from September 1, 2004 to the Closing Date (as defined below). The Depositor
will not be obligated to deliver any of the Offered Certificates except upon
payment for all the Offered Certificates to be purchased as provided herein.
(b) The Depositor understands that the Underwriters intend to make a
public offering of their respective portions of the Offered Certificates as soon
after the effectiveness of this Agreement as in the judgment of the Lead
Underwriters is advisable, and initially to offer the Offered Certificates on
the terms set forth in the Prospectus.
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated represents and
warrants to the Depositor that it has the authority to act as Representative of
the Underwriters and to bind the Underwriters hereto.
(d) Payment for and delivery of the Offered Certificates will be made
at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City time, on September 29, 2004, or at
such other time on the same or such other date, not later than the fifth
business day thereafter, as the Lead Underwriters and the Depositor may agree
upon in writing. The time and date of such payment and delivery is referred to
herein as the "CLOSING DATE".
(e) Payment for the Offered Certificates shall be made by wire
transfer in immediately available funds to the account(s) specified by the
Depositor to the Lead Underwriters against delivery to the nominee of The
Depository Trust Company, for the account of the Underwriters, of one or more
global notes representing the Offered Certificates (collectively, the "GLOBAL
Notes"), with any transfer taxes payable in connection with the sale of the
Offered Certificates duly paid by the Depositor. The Global Notes will be made
available for inspection by the Lead Underwriters not later than 1:00 P.M., New
York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Depositor. The Depositor
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement
has been declared effective by the Commission under the Securities Act; no order
suspending the effectiveness of the Registration Statement has been issued by
the Commission and no proceeding for that purpose has been initiated or, to the
best knowledge of the Depositor, threatened by the Commission; and the
Registration Statement and any amendment thereto, at the time the Registration
Statement became effective, as of the date of the Prospectus Supplement and as
of the date that any such amendment to the Registration Statement became
effective, did and will (during the Prospectus Delivery Period (as defined
below)) comply in all material respects with the Securities Act, and did not and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
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order to make the statements therein not misleading; and as of the date of the
Prospectus Supplement, as of the date of any amendment or other supplement to
the Prospectus and on the Closing Date, the Prospectus did and will comply in
all material respects with the Securities Act and did not and will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Depositor makes no representation and warranty with respect to (i) any
statements or omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Depositor in writing by such
Underwriter through the Lead Underwriters expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto or (ii) the
Sellers' Information (as defined in Section 6(a)) or (iii) the 8-K Information
(as defined in Section 7(a)); the conditions to the use by the Depositor of a
registration statement on Form S-3 under the Securities Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus.
(b) No Material Adverse Change. Other than as set forth or
contemplated in the Prospectus, since the date as of which information is given
in the Prospectus, there has not been any material adverse change or any
development involving a prospective material adverse change, in or affecting the
business, prospects, management, financial position, stockholders' equity or
results of operations of the Depositor.
(c) Organization and Good Standing. The Depositor has been duly
organized and is a validly existing organization in good standing under the laws
of its jurisdiction of organization, is duly qualified to do business and is in
good standing as a foreign entity in each jurisdiction in which the conduct of
its business requires such qualification, and has all power and authority
necessary to enter into and perform its obligations under this Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements and to
own or hold its properties and to conduct the business in which it is engaged,
except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have a material adverse effect on
the transactions contemplated herein or in the Basic Documents (a "MATERIAL
ADVERSE EFFECT").
(d) Due Authorization. The Depositor has full right, power and
authority to execute and deliver this Agreement, the Certificates, the Pooling
and Servicing Agreement and the other Basic Documents and to perform its
obligations hereunder and thereunder; and all action (corporate and other)
required to be taken for the due and proper authorization, execution and
delivery of this Agreement and each of the Basic Documents and the consummation
of the transactions contemplated hereby and thereby has been duly and validly
taken.
(e) The Pooling and Servicing Agreement. The Pooling and Servicing
Agreement has been duly authorized by the Depositor and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability (collectively, the "ENFORCEABILITY EXCEPTIONS").
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(f) The Certificates. The Offered Certificates have been duly
authorized and, when duly executed, authenticated, issued and delivered as
provided in the Pooling and Servicing Agreement and paid for as provided herein,
will be duly and validly issued and outstanding and will be entitled to the
benefits and security afforded by the Pooling and Servicing Agreement.
(g) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Depositor and, when duly executed and delivered in
accordance with its terms by or on behalf of each of the other parties hereto,
will constitute a valid and legally binding agreement of the Depositor
enforceable against the Depositor in accordance with its terms, subject to the
Enforceability Exceptions.
(h) Basic Documents. Each of the Basic Documents to which the
Depositor is a party has been duly authorized and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Depositor enforceable
against the Depositor in accordance with its terms, subject to the
Enforceability Exceptions.
(i) Descriptions of Basic Documents. Each Basic Document conforms in
all material respects to the description thereof contained in the Registration
Statement and the Prospectus.
(j) No Violation or Default. The Depositor is not (i) in violation of
its charter, by-laws or similar organizational documents; (ii) in default, and
no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party or
by which the Depositor is bound or to which any of the property or assets of the
Depositor is subject; or (iii) in violation of any law or statute or any
judgment, order or regulation of any court or governmental agency or body having
jurisdiction over the Depositor, or any of its properties ("GOVERNMENTAL
AUTHORITY"), except, in the case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(k) No Conflicts with Existing Instruments. The execution, delivery
and performance by the Depositor of this Agreement and each of the Basic
Documents, the issuance and sale of the Certificates and compliance by the
Depositor with the terms hereof and thereof and the consummation of the
transactions contemplated by this Agreement and the Basic Documents will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Depositor pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Depositor is a party or by which the
Depositor is bound or to which any of the property or assets of the Depositor is
subject; (ii) result in any violation of the provisions of the charter, by-laws
or similar organizational documents of the Depositor; or (iii) result in the
violation of any law or statute or any judgment, order or regulation of any
Governmental Authority, except, in the case
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of clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(l) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any Governmental Authority is required
for the execution, delivery and performance by the Depositor of this Agreement,
each of the Basic Documents, the issuance and sale of the Certificates and
compliance by the Depositor with the terms hereof and thereof and the
consummation of the transactions contemplated by this Agreement and the Basic
Documents, except for such consents, approvals, authorizations, orders and
registrations or qualifications as have already been obtained or as of the
Closing Date will have been obtained or such as may be required under applicable
state securities laws in connection with the purchase and distribution of the
Offered Certificates by the Underwriters.
(m) Legal Proceedings. Except as described in the Prospectus, there
are no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Depositor is or may be a party or to which any
property of the Depositor is or may be the subject that, individually or in the
aggregate, if determined adversely to the Depositor, could reasonably be
expected to have a Material Adverse Effect; to the best knowledge of the
Depositor, no such investigations, actions, suits or proceedings are threatened
or contemplated by any Governmental Authority or threatened by others; and there
are no statutes, regulations or contracts, indentures or other documents that
are required under the Securities Act to be filed as exhibits to the
Registration Statement or described in the Registration Statement or the
Prospectus and that are not so filed or described.
(n) Independent Accountants. Ernst & Young LLP are independent public
accountants with respect to the Depositor as required by the Securities Act.
(o) Title to Mortgage Loans. At the time of the execution of the
Pooling and Servicing Agreement, the Depositor (i) will convey to the Trustee,
or cause to be conveyed to the Trustee, all of the Depositor's right, title and
interest in and to the Mortgage Loans being transferred to the Trustee pursuant
to the Pooling and Servicing Agreement, free and clear of Liens granted by or
imposed upon the Depositor, and (ii) will not have assigned to any other person
any of its right, title or interest in the Mortgage Loans or in the Pooling and
Servicing Agreement or the Certificates. Upon execution and delivery of the
Pooling and Servicing Agreement by the Trustee, the Trustee will have acquired
ownership of all of the Depositor's right, title and interest in and to the
Mortgage Loans except to the extent disclosed in the Prospectus, and upon
delivery to the Underwriters of the Offered Certificates pursuant hereto, each
Underwriter will have good title to the Offered Certificates purchased by such
Underwriter, in each case free of Liens granted by or imposed upon the
Depositor.
(p) Investment Company Act. Neither the Depositor nor the trust fund
created under the Pooling and Servicing Agreement (the "Trust Fund") is (and,
after giving effect to the offering and sale of the Certificates and the
application of the proceeds thereof as described in the Prospectus, neither the
Depositor nor the Trust Fund will be) an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, "INVESTMENT COMPANY ACT").
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(q) Representations in Basic Documents. The representations and
warranties of the Depositor contained in the Basic Documents are true and
correct in all material respects.
(r) Taxes. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the Pooling and
Servicing Agreement, the other Basic Documents and the delivery and sale of the
Certificates (other than such federal, state and local taxes as may be payable
on the income or gain recognized therefrom) have been or will be paid at or
prior to the Closing Date.
(s) Accounting Treatment. Upon the sale to unaffiliated third parties
of Certificates representing at least 10% of the total fair value of all of the
Certificates, the Depositor will, under generally accepted accounting
principles, report the transfer of the Mortgage Loans to the Trustee in exchange
for the Certificates and the sale of the Offered Certificates to the
Underwriters pursuant to this Agreement as a sale of the interest in the
Mortgage Loans evidenced by such Offered Certificates.
(t) Solvency. The Depositor will be solvent at all relevant times
prior to, and will not be rendered insolvent by, the sale of the Offered
Certificates to the Underwriters.
(u) No Intention to Delay or Defraud. The Depositor is not selling the
Offered Certificates to the Underwriters with any intent to hinder, delay or
defraud any of the creditors of the Depositor.
4. Further Agreements of the Depositor. The Depositor covenants and agrees
with each Underwriter that:
(a) Filing of Prospectus. The Depositor will file the final Prospectus
with the Commission within the time periods specified by Rule 424(b) under the
Securities Act; and the Depositor will furnish copies of the Prospectus to the
Underwriters in New York City prior to 10:00 A.M., New York City time, at least
three days prior to the Closing Date in such quantities as the Lead Underwriters
may reasonably request.
(b) Delivery of Copies. The Depositor will deliver (i) to the Lead
Underwriters, one copy of the Registration Statement as originally filed and
each amendment thereto, in each case including all exhibits and consents filed
therewith, and (ii) to each Underwriter (A) a conformed copy of the Registration
Statement as originally filed and each amendment thereto, in each case including
all exhibits and consents filed therewith and (B) during the Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments and
supplements thereto) as the Lead Underwriters may reasonably request. As used
herein, the term "PROSPECTUS DELIVERY PERIOD" means such period of time after
the first date of the public offering of the Offered Certificates as in the
opinion of counsel for the Underwriters a prospectus relating to the Offered
Certificates is required by law to be delivered in connection with sales of the
Offered Certificates by any Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether before or
after the time that the Registration Statement becomes effective, the Depositor
will furnish to the Lead Underwriters and counsel for the Underwriters a copy of
the proposed amendment or supplement for review
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and will not file any such proposed amendment or supplement to which the Lead
Underwriters reasonably object.
(d) Notice to the Lead Underwriters. The Depositor will advise the
Lead Underwriters promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus
has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration
Statement or any other request by the Commission for any additional information;
(iv) of the issuance by the Commission of any order suspending the effectiveness
of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading, and (vi) of the receipt by the Depositor of any
notice with respect to any suspension of the qualification of the Offered
Certificates for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and the Depositor will use every
reasonable effort to prevent the issuance of any such order suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Offered Certificates and, if issued, will use every
reasonable effort to obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or (ii) it is necessary
to amend or supplement the Prospectus to comply with law, the Depositor will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Lead Underwriters may designate, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(f) Blue Sky Compliance. The Depositor will use reasonable efforts in
cooperation with the Underwriters to qualify the Offered Certificates for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the Lead
Underwriters shall reasonably request and will continue such qualifications in
effect so long as may be reasonably required for distribution of the Offered
Certificates, provided that the Depositor shall not be required to (i) qualify
as a foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify; (ii)
file any general consent to service of process in such jurisdiction; or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject.
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(g) Earning Statement. The Depositor will make generally available to
its security holders as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Depositor occurring after the
"effective date" (as defined in Rule 158) of the Registration Statement.
(h) Copies of Reports. So long as the Offered Certificates are
outstanding, the Depositor will furnish, or cause to be furnished, to each
Underwriter (i) copies of each certificate, the annual statements of compliance
and the annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to the Pooling and Servicing Agreement by
first class mail as soon as practicable after such statements and reports are
furnished to the Trustee; (ii) copies of each amendment to any of the Basic
Documents; and (iii) copies of all reports or other communications (financial or
other) furnished to holders of the Offered Certificates, and copies of any
reports and financial statements furnished to or filed with the Commission, any
governmental or regulatory authority or any national securities exchange.
(i) Use of Proceeds. The Depositor will apply the net proceeds from
the sale of the Offered Certificates as described in the Registration Statement
and the Prospectus.
(j) Rating Agencies. To the extent, if any, that the ratings provided
with respect to the Offered Certificates by the Rating Agencies are conditional
upon the furnishing of documents or the taking of any other action by the
Depositor, the Depositor shall use its best efforts to furnish such documents
and take any other such action.
(k) Exchange Act Filings. The Depositor will file or cause to be filed
all documents and certifications required to be filed by the Commission pursuant
to the Exchange Act within the time periods required by the Exchange Act and the
rules and regulations thereunder.
5. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Offered Certificates on the Closing Date as provided
herein is subject to the performance by the Depositor of its obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed under the
Securities Act, such post-effective amendment shall have become effective, and
the Lead Underwriters shall have received notice thereof, not later than 5:00
P.M., New York City time, on the date hereof, no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose shall be pending before or threatened by the
Commission; the Prospectus shall have been timely filed with the Commission
under the Securities Act and in accordance with Section 4(a) hereof, and all
requests by the Commission for additional information shall have been complied
with to the reasonable satisfaction of the Lead Underwriters.
(b) Representations and Warranties. The representations and warranties
of the Depositor contained herein shall be true and correct on the date hereof
and on and as of the
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Closing Date; the statements of the Depositor and its officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date; and the Depositor shall have complied with all
agreements and all conditions to be performed or satisfied on its part hereunder
at or prior to the Closing Date.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(b) hereof shall have occurred or shall exist, which event or condition is not
described in the Prospectus (excluding any amendment or supplement thereto not
otherwise available at least two Business Days prior to the Closing Date) and
the effect of which, in the judgment of the Lead Underwriters, makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Offered Certificates on the terms and in the manner contemplated by this
Agreement and the Prospectus.
(d) Officer's Certificates. The Lead Underwriters shall have received
on and as of the Closing Date a certificate of an executive officer of the
Depositor satisfactory to the Lead Underwriters (i) confirming that such officer
has carefully reviewed the Registration Statement and the Prospectus and, to the
best knowledge of such officer, the representation set forth in Section 3(a)
hereof is true and correct and (ii) confirming satisfaction of the conditions
set forth in paragraphs (a), (b) and (c) above. In addition, the Lead
Underwriters shall have received from the Secretary or an assistant secretary of
the Depositor (or such other officer of the Depositor satisfactory to the Lead
Underwriters) a certificate, dated the Closing Date, to the effect that: (i)
each individual who, as an officer or representative of the Depositor, signed
this Agreement, the Pooling and Servicing Agreement, any of the Mortgage Loan
Purchase Agreements or any other document or certificate delivered on or before
the Closing Date in connection with the transactions contemplated herein, in the
Pooling and Servicing Agreement or in any of the Mortgage Loan Purchase
Agreements, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures; and (ii) no event
(including, without limitation, any act or omission on the part of the
Depositor) has occurred since the date of the good standing certificate referred
to in paragraph (q) below which has affected the good standing of the Depositor
under the laws of the State of Delaware. Such certificate shall be accompanied
by true and complete copies (certified as such by the Secretary or an assistant
secretary of the Depositor or such other officer of the Depositor satisfactory
to the Lead Underwriters) of (i) the certificate of incorporation and by-laws of
the Depositor, as in effect on the Closing Date, and (ii) the resolutions of the
Depositor and any required shareholder consent relating to the transactions
contemplated in this Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreements.
(e) Mortgage Loan Purchase Agreements; Indemnification Agreement. Each
of the Mortgage Loan Purchase Agreements and the Indemnification Agreement dated
September 17, 2004, by and between ▇▇▇▇▇▇▇, KeyBank, JPMorgan, the Depositor and
the Underwriters (the "INDEMNIFICATION AGREEMENT") shall have been executed and
delivered.
(f) Comfort Letters. On the date of this Agreement and on the Closing
Date, Ernst & Young LLP shall have furnished to the Lead Underwriters, at the
request of the
10
Depositor, letters, dated the respective dates of delivery thereof and addressed
to the Underwriters, in form and substance reasonably satisfactory to the Lead
Underwriters.
(g) Opinion of Counsel for the Depositor. (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇ LLP, counsel for the Depositor, shall have furnished to the Lead
Underwriters, at the request of the Depositor, their written opinion, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Lead Underwriters and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in-house counsel
to the Depositor, shall have furnished to the Lead Underwriters, at the request
of the Depositor, a written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Lead
Underwriters.
(h) Opinion of Counsel for the Underwriters. The Lead Underwriters
shall have received on and as of the Closing Date an opinion, dated the Closing
Date and addressed to the Underwriters, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters, with respect to such matters as the Lead Underwriters may
reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(i) Opinion of Counsel for the Master Servicer and the Special
Servicer. Counsel to the Master Servicer and the Special Servicer shall have
furnished to the Lead Underwriters its opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance satisfactory to the Lead
Underwriters.
(j) Reserved.
(k) Opinion of Counsel for the Trustee. Counsel to the Trustee shall
have furnished to the Lead Underwriters its opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance satisfactory to the Lead
Underwriters.
(l) Opinions of Counsel to Sellers. Counsel for each Seller shall have
furnished to the Lead Underwriters its opinion, dated the Closing Date and
addressed to the Underwriters, in form and substance satisfactory to the Lead
Underwriters.
(m) Disclosure Letters. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for
the Depositor, shall have furnished to the Lead Underwriters a letter, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Lead Underwriters, regarding the disclosure in the
Registration Statement and the Prospectus. Counsel for each Seller shall have
furnished to the Lead Underwriters a letter, dated the Closing Date and
addressed to the Underwriters, in form and substance satisfactory to the Lead
Underwriters, regarding the disclosure with respect to such Seller and its
Mortgage Loans in the Prospectus Supplement.
(n) Rating Agency Opinions. Each Underwriter shall be addressed in any
opinion from any counsel delivering any written opinion to the Rating Agencies
in connection with the transaction described herein which is not otherwise
described in this Agreement.
(o) Rating Agency Letters. Each Underwriter shall have received copies
of letters from Fitch, Inc. and ▇▇▇▇▇'▇ Investors Service, Inc. (together, the
"RATING AGENCIES")
11
stating that the Offered Certificates are rated as set forth on Schedule II
hereto by the Rating Agencies.
(p) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any Governmental Authority that would, as of the Closing Date, prevent
the issuance or sale of the Certificates, and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Certificates.
(q) Good Standing. The Lead Underwriters shall have received on and as
of the Closing Date satisfactory evidence of the good standing of the Depositor
in its jurisdiction of organization and its good standing as a foreign entity in
such other jurisdictions as the Lead Underwriters may reasonably request, in
each case in writing or any standard form of telecommunication from the
appropriate Governmental Authorities of such jurisdictions.
(r) Additional Documents. On or prior to the Closing Date, the
Depositor shall have furnished to the Underwriters such further opinions,
certificates and documents as the Lead Underwriters may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
6. Indemnification and Contribution. (a) Indemnification of the
Underwriters. The Depositor agrees to indemnify and hold harmless each
Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action, investigations or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any Preliminary Prospectus, or the attached
diskette to the Preliminary Prospectus or the Prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with (i) information with respect to which each
Underwriter has agreed to indemnify the Depositor pursuant to Section 6(b) or
(ii) information with respect to which each Seller has agreed to indemnify the
Underwriters pursuant to the Indemnification Agreement (such information
referred to herein as the "SELLERS' INFORMATION"); provided, that with respect
to any such untrue statement in or omission from any Preliminary Prospectus, the
indemnity agreement contained in this paragraph (a) shall not inure to the
benefit of any particular Underwriter to the extent that the sale to the person
asserting any such loss, claim, damage or liability was an initial resale by
such Underwriter and any such loss, claim, damage or liability of or with
respect to such Underwriter results from the fact that both (i) to the extent
required by applicable law, a copy of the Prospectus was not sent or given to
such person at or prior to the
12
written confirmation of the sale of such Offered Certificates to such person and
(ii) the untrue statement in or omission from such Preliminary Prospectus was
corrected in the Prospectus unless, in any case, such failure to deliver the
Prospectus was a result of noncompliance by the Depositor with the provisions of
Section 4 hereof.
(b) Indemnification of the Depositor. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Depositor, its
directors, its officers who signed the Registration Statement and each person,
if any, who controls the Depositor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities caused by any untrue statement or omission or
alleged untrue statement or omission (i) made in reliance upon and in conformity
with any information relating to such Underwriter furnished to the Depositor in
writing by such Underwriter through the Lead Underwriters expressly for use in
the Registration Statement and the Prospectus (or any amendment or supplement
thereto) or any Preliminary Prospectus (such information set forth in Section 14
hereof) or (ii) in the 8-K Information (as defined in Section 7(a)) prepared by
such Underwriter (when read in conjunction with the Prospectus as an integral
document and in light of the circumstances under which such statements in the
8-K Information and the Prospectus were made), except to the extent that a
Seller has agreed to indemnify the Depositor with respect thereto pursuant to
the Indemnification Agreement; provided, that no such material untrue statement
or omission arises from any error or omission in information relating to the
underlying data regarding the Mortgage Loans or the related mortgagors or
mortgaged properties provided by the Depositor to such Underwriter.
Notwithstanding the foregoing, the indemnity in clause (ii) of the immediately
preceding sentence will apply only if such untrue statement or omission or
alleged untrue statement or omission was not also an untrue statement or
omission or alleged untrue statement or omission in the Prospectus.
(c) Underwriter Indemnification. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless each other Underwriter, its
affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (each such indemnified Underwriter, together with each such
affiliate, director, officer and controlling person in respect thereof,
collectively, the "NON-INDEMNIFYING UNDERWRITER") from and against any and all
losses, claims, damages or liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, to which the Non-Indemnifying Underwriter becomes subject, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of material fact contained in any 8-K Information or other written materials
prepared by such indemnifying Underwriter, or any member of its selling group,
in connection with the Certificates or in any revision or amendment thereof or
supplement thereto, or any omission or alleged omission (when read in
conjunction with the Prospectus) to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except to the extent that the
Non-Indemnifying Underwriter is indemnified therefor under the indemnity of the
Sellers set forth in the Indemnification Agreement. This agreement will be in
addition to any liability that any Underwriter may otherwise have.
13
(d) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to any of paragraphs (a), (b) and (c) above, such person (the
"INDEMNIFIED PERSON") shall promptly notify the person against whom such
indemnification may be sought (the "INDEMNIFYING PERSON") in writing; provided
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under Section 6(a), (b) and (c) except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have to an Indemnified Person otherwise than under this Section 6. If any
such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Underwriter,
its affiliates and any control persons of such Underwriter shall be designated
in writing by ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (or, if
indemnification is being sought pursuant to paragraph (c) above, by the
Underwriter that comprises the subject Non-Indemnifying Underwriter), and any
such separate firm for the Depositor, its directors, its officers who signed the
Registration Statement and any control persons of the Depositor shall be
designated in writing by the Depositor. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
14
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person in form and substance satisfactory to such Indemnified Person
from all liability on claims that are the subject matter of such proceeding and
(y) does not include any statement as to or any admission of fault, culpability
or a failure to act by or on behalf of any Indemnified Person.
(e) Contribution. If the indemnification provided for in any of
paragraphs (a), (b) and (c) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnifying Person on the one hand and the
Indemnified Person on the other from the offering of the Offered Certificates or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the
Indemnifying Person on the one hand and the Indemnified Person on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Depositor on the one hand
and each Underwriter on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Depositor from the sale of the Offered Certificates and the total fees,
underwriting discounts and commissions received by such Underwriter in
connection therewith bear to the aggregate offering price of the Offered
Certificates. The relative fault of the Depositor on the one hand and each
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Depositor or by such Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(f) Limitation on Liability. The Depositor and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
6 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (e)
above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (e) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 6 (other than
paragraph (c)), in no event shall an Underwriter be required to contribute any
amount in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the
Offered Certificates exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this
15
Section 6 are several in proportion to their respective purchase obligations
hereunder and not joint.
(g) Non-Exclusive Remedies. The remedies provided for in this Section
6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any Indemnified Person at law or in equity.
7. 8-K Information and Derived Information. (a) Each Underwriter may, with
the approval of the Lead Underwriters, prepare and provide to prospective
investors in connection with its offering of the Offered Certificates
"Computational Materials," "ABS Term Sheets" and "Collateral Term Sheets"
(collectively, the "8-K INFORMATION") described in the No-Action Letter of May
20, 1994 issued by the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I
and certain affiliates, as made applicable to other issuers and underwriters by
the Commission in response to the request of the Public Securities Association
dated May 24, 1994 (collectively, the "▇▇▇▇▇▇/PSA LETTER"), and in accordance
with the requirements of the No-Action Letter of February 17, 1995 issued by the
Commission to the Public Securities Association (the "PSA LETTER" and, together
with the ▇▇▇▇▇▇/PSA Letter, the "NO-ACTION LETTERS") only upon satisfaction of
the following conditions: (i) such Underwriter shall comply with the
requirements of the No-Action Letters; (ii) for purposes hereof, "COMPUTATIONAL
MATERIALS" shall have the meaning given such term in the No-Action Letters, but
with respect to any Underwriter shall include only those Computational Materials
that have been prepared by such Underwriter for prospective investors and for
purposes hereof, "ABS TERM SHEETS" and "COLLATERAL TERM SHEETS" shall have the
meanings given such terms in the PSA Letter but with respect to any Underwriter
shall include only those ABS Term Sheets or Collateral Term Sheets that have
been prepared by such Underwriter for prospective investors; (iii) each
Underwriter shall provide to the Depositor any 8-K Information which is provided
to investors no later than the second business day preceding the date such 8-K
Information is required to be filed pursuant to the applicable No-Action Letters
and each Underwriter may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed; and (iv) in the
event that the Depositor or any Underwriter discovers an error in the 8-K
Information, the Underwriter that prepared such material shall prepare corrected
8-K Information and deliver it to the Depositor for filing.
(b) The Depositor will cause to be filed with the Commission one or
more current reports on Form 8-K with respect to the 8-K Information within the
time period required in the No-Action Letters.
(c) Each Underwriter shall cause ▇▇▇▇▇ & Young LLP to furnish the
Depositor with a letter dated no later than the Closing Date, in form and
substance satisfactory to the Depositor, with respect to any 8-K Information
prepared by such Underwriter.
(d) Each Underwriter represents and warrants to, and covenants with,
the Depositor that the 8-K Information prepared by such Underwriter, when read
in conjunction with the Prospectus, is not misleading and not inaccurate in any
material respect (taking into account the assumptions explicitly set forth or
otherwise referred to in the 8-K Information or in the Prospectus or the
Preliminary Prospectus); provided that no Underwriter makes any
16
representation or warranty as to any 8-K Information for which a Seller has
agreed to indemnify the Depositor pursuant to the Indemnification Agreement.
8. Effectiveness of Agreement. This Agreement shall become effective upon
the execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion
of the Lead Underwriters, by notice to the Depositor, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on or by any of the New York
Stock Exchange or the over-the-counter market; (ii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; (iii) there shall have occurred a material disruption in
securities settlement or clearance services in the United States; or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change or
prospective change in financial markets or any calamity or crisis, either within
or outside the United States, that in the judgment of the Lead Underwriters is
material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Offered Certificates on the terms and in
the manner contemplated by this Agreement and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter
defaults on its obligation to purchase the Offered Certificates that it has
agreed to purchase hereunder, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Offered Certificates by other
persons satisfactory to the Depositor on the terms contained in this Agreement.
If, within 36 hours after any such default by any Underwriter, the
non-defaulting Underwriters do not arrange for the purchase of such Offered
Certificates, then the Depositor shall be entitled to a further period of 36
hours within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Offered Certificates on such terms. If other
persons become obligated or agree to purchase the Offered Certificates of a
defaulting Underwriter, either the non-defaulting Underwriters or the Depositor
may postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Depositor or counsel
for the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Depositor agrees to
promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the
term "UNDERWRITER" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule I hereto that,
pursuant to this Section 10, purchases Offered Certificates that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Offered Certificates, then the Depositor shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder plus such
Underwriter's pro rata share (based on the principal amount of Offered
Certificates that such Underwriter agreed to purchase hereunder)
17
of the Offered Certificates of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Certificates of a defaulting Underwriter or Underwriters by the
non-defaulting Underwriters and the Depositor as provided in paragraph (a)
above, the aggregate principal amount of such Offered Certificates that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Offered Certificates, or if the Depositor shall not exercise the right described
in paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Underwriters or the Depositor, except that the
Depositor will continue to be liable for the payment of expenses as set forth in
Section 11 hereof and except that the provisions of Section 6 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Depositor or any non-defaulting Underwriter for
damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Depositor
will pay or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Certificates and any taxes payable in that connection; (ii) the costs incident
to the preparation, printing and filing under the Securities Act of the 8-K
Information, the Registration Statement, the Preliminary Prospectus and the
Prospectus (including all exhibits, amendments and supplements thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing this
Agreement, each of the Basic Documents and the Indemnification Agreement; (iv)
the fees and expenses of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters; (v)
the fees and expenses of the Depositor's counsel and independent accountants;
(vi) the fees and expenses incurred in connection with the registration or
qualification and determination of eligibility for investment of the Offered
Certificates under the laws of such jurisdictions as the Lead Underwriters may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the
Underwriters); (vii) any fees charged by Rating Agencies for rating the
Certificates; (viii) the fees and expenses of the Trustee, the Master Servicer
and the Special Servicer (including related fees and expenses of any counsel to
such parties); (ix) all expenses and application fees incurred in connection
with any filing with the National Association of Securities Dealers, Inc.; (x)
all expenses incurred in connection with any "road show" presentation to
potential investors; and (xi) the costs and expenses of the Depositor in
connection with the purchase of the Mortgage Loans.
(b) If (i) this Agreement is terminated pursuant to Section 9; (ii)
the Depositor for any reason fails to tender the Offered Certificates for
delivery to the Underwriters; or (iii) the Underwriters decline to purchase the
Offered Certificates for any reason permitted under this Agreement, the
Depositor agrees to reimburse the Underwriters for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably incurred
by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
18
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Depositor, its officers and directors and
any controlling persons referred to herein, the Underwriters, their directors
and officers, and the Underwriters' respective affiliates and any controlling
persons referred to herein, and their respective successors. Nothing in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Offered Certificates from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Depositor and the Underwriters
contained in this Agreement or made by or on behalf of the Depositor or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Offered Certificates
and shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Depositor or the
Underwriters.
14. Underwriters' Information. The Depositor and the Underwriters
acknowledge and agree that the only information relating to any Underwriter that
has been furnished to the Depositor in writing by any Underwriter through the
Lead Underwriters expressly for use in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) and any Preliminary
Prospectus consists of the following information in the Prospectus Supplement or
any preliminary version thereof: the first, second, third and fifth sentences of
the last paragraph above the bolded names of the Underwriters on the cover page,
the clause following the final comma of the fourth sentence of the last
paragraph above the bolded names of the Underwriters on the cover page, the
information under the caption "Summary of Prospectus Supplement--Relevant
Parties--Underwriters", the first clause of the second sentence under the
caption "Risk Factors--Risks Related to the Offered Certificates--The Offered
Certificates Will Have Limited Liquidity and May Experience Fluctuations in
Market Value Unrelated to the Performance of the Mortgage Loans", and the second
paragraph, the first, second and third sentences of the fourth paragraph, the
first sentence (but only up to the semicolon in such sentence) of the sixth
paragraph and the eighth paragraph under the caption "Method of Distribution".
15. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term "AFFILIATE" has the meaning set forth in
Rule 405 under the Securities Act; (b) the term "BUSINESS DAY" means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term "SUBSIDIARY" has the meaning set forth in Rule 405
under the Securities Act.
16. Miscellaneous. (a) Authority of the Representative. Any action by the
Underwriters hereunder may be taken by ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated on behalf of the Underwriters, and any such action taken by ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated shall be binding upon the
Underwriters.
(b) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representative at ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 4 World Financial
19
Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax:
▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Office of the General Counsel, 4 World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇)), and notices to ▇.▇. ▇▇▇▇▇▇
Securities Inc. shall be given to ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇), Attention: CMBS Trading, and
notices to McDonald Investments Inc. shall be given to McDonald Investments
Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
▇▇▇ ▇▇▇▇▇▇▇▇, and notices to Deutsche Bank Securities Inc. shall be given to
Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax:
▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇▇▇▇. Notices to the Depositor shall be given
to it at ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., 4 World Financial Center, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇),
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇ (with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Office of the General
Counsel, 4 World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇)).
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement. References herein to "Sections," Exhibits,"
and "Schedules" without reference to a document or other source are designated
Sections, Exhibits, and Schedules of this Agreement.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK.]
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If the foregoing is in accordance with your understanding, please indicate
your acceptance of this Agreement by signing in the space provided below.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Title: Executive Vice President
Accepted: September 17, 2004
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
For itself and on behalf of the
several Underwriters listed on Schedule I.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Authorized Signatory
SCHEDULE I
AGGREGATE INITIAL PRINCIPAL AMOUNT
OF CERTIFICATES TO BE PURCHASED AND PURCHASE PRICES*
-----------------------------------------------------------------------------------------------------------------------------------
Principal Purchase Principal Purchase Principal Purchase Principal Purchase
Amount of Price of Amount of Price of Amount of Price of Amount of Price of
Class A-1 Class A-1 Class A-2 Class A-2 Class A-3 Class A-3 Class A-4 Class A-4
Underwriter Certificates Certificates Certificates Certificates Certificates Certificates Certificates Certificates
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated $35,067,065 100.248410% $100,290,024 100.544960% $54,755,737 100.545190% $175,778,717 100.547410%
-----------------------------------------------------------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇
Securities Inc. $23,932,935 100.248410% $68,446,976 100.544960% $37,370,263 100.545190% $119,967,283 100.547410%
-----------------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital
Markets, a
Division of
McDonald
Investments Inc. $0 NA $25,000,000 100.544960% $0 NA $25,000,000 100.547410%
-----------------------------------------------------------------------------------------------------------------------------------
Deutsche Bank
Securities Inc. $0 NA $0 NA $0 NA $25,000,000 NA
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Underwriter Principal Purchase Principal Purchase Principal Purchase Principal Purchase
Amount of Price of Amount of Price of Amount of Price of Amount of Price of
Class B Class B Class C Class C Class D Class D Class E Class E
Certificates Certificates Certificates Certificates Certificates Certificates Certificates Certificates
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated $15,735,008 100.544630% $4,969,419 100.548470% $13,251,190 100.546470% $7,453,239 100.549580%
-----------------------------------------------------------------------------------------------------------------------------------
▇.▇. ▇▇▇▇▇▇
Securities Inc. $10,738,992 100.544630% $3,391,581 100.548470% $9,043,810 100.546470% $5,086,761 100.549580%
-----------------------------------------------------------------------------------------------------------------------------------
KeyBanc Capital
Markets, a
Division of
McDonald
Investments Inc. $0 NA $0 NA $0 NA $0 NA
-----------------------------------------------------------------------------------------------------------------------------------
Deutsche Bank
Securities Inc. $0 NA $0 NA $0 NA $0 NA
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
* Excluding accrued interest.
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SCHEDULE II
----------------------------------------------------------------------------------
CERTIFICATE RATING
----------------------------------------------------------------------------------
DESIGNATION FITCH, INC. ▇▇▇▇▇'▇ INVESTORS SERVICE, INC.
----------------------------------------------------------------------------------
Class A-1 AAA Aaa
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Class A-2 AAA Aaa
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Class A-3 AAA Aaa
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Class A-4 AAA Aaa
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Class B AA Aa2
----------------------------------------------------------------------------------
Class C AA- Aa3
----------------------------------------------------------------------------------
Class D A A2
----------------------------------------------------------------------------------
Class E A- A3
----------------------------------------------------------------------------------
23