▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-HQ8
UNDERWRITING AGREEMENT
March 17, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LaSalle Financial Services, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇-▇▇▇-22-03
Charlotte, NC 28255
Greenwich Capital Markets, Inc.
RBS Greenwich Capital
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., a Delaware corporation (the "Depositor"),
proposes to cause the issuance of, and to sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, LaSalle Financial Services, Inc., Banc of America Securities LLC
and Greenwich Capital Markets, Inc. (together, the "Underwriters"), the
Commercial Mortgage Pass-Through Certificates identified in Schedule I hereto
(the "Certificates") pursuant to this Underwriting Agreement, dated March 17,
2006 (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
segregated pool (the "Mortgage Pool") of multifamily and commercial mortgage
loans (the "Mortgage Loans").
Certain of the Mortgage Loans (the "MSMC Mortgage Loans") will be
acquired by the Depositor from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. ("MSMC")
pursuant to the mortgage loan purchase agreement, dated March 17, 2006 (the
"MSMC Mortgage Loan Purchase Agreement")
between the Depositor and MSMC. Certain of the Mortgage Loans (the "LaSalle
Mortgage Loans") will be acquired by the Depositor from LaSalle Bank National
Association ("LaSalle") pursuant to the mortgage loan purchase agreement, dated
March 17, 2006 (the "LaSalle Mortgage Loan Purchase Agreement"), between the
Depositor and LaSalle. MSMC and LaSalle collectively constitute the "Mortgage
Loan Sellers"; and the MSMC Mortgage Loan Purchase Agreement and the LaSalle
Mortgage Loan Purchase Agreement collectively constitute the "Mortgage Loan
Purchase Agreements."
The Trust is to be created and the Certificates are to be issued under a
pooling and servicing agreement, dated as of March 1, 2006 (the "Pooling and
Servicing Agreement"), between the Depositor, as depositor, ▇▇▇▇▇ Fargo Bank,
National Association ("WFB"), as master servicer, ▇.▇. ▇▇▇▇▇▇ Company, Inc., as
special servicer, U.S. Bank National Association ("U.S. Bank"), as trustee and
custodian and LaSalle, as paying agent, certificate registrar and authenticating
agent.
Capitalized terms used herein, but not otherwise defined herein shall
have the meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-125593) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The
Depositor proposes to file with the Commission pursuant to Rule 424(b) under the
1933 Act a supplement to the form of prospectus included in such registration
statement relating to the Certificates and the plan of distribution thereof.
Such registration statement, including the exhibits thereto, and information
that is contained in the Prospectus (as defined below) and is deemed to be part
of and included in such registration statement as it may have been amended or
supplemented at the date of the Prospectus, is hereinafter referred to as the
"Registration Statement"; the prospectus first required to be filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
1933 Act, is hereinafter referred to as the "Base Prospectus"; such form of
supplement to the Base Prospectus relating to the Certificates, in the form
first required to be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule 424(b) under the 1933 Act (including the Base Prospectus as so
supplemented) is hereinafter referred to as the "Prospectus Supplement"; and the
Base Prospectus and the Prospectus Supplement, together, are hereinafter
referred to as the "Prospectus".
At or prior to the time when sales to purchasers of the Certificates
were first made, which was approximately 1 p.m. on March 17, 2006 (the "Time of
Sale"), the Depositor had prepared the following information (collectively, the
"Time of Sale Information"): the Depositor's Free Writing Prospectus dated March
7, 2006 (the cover page of which is attached hereto as Annex A) to accompany the
Depositor's Prospectus dated June 7, 2005, the Depositor's Prospectus dated June
7, 2005, the Term Sheet dated March 7, 2006, relating to the Certificates, each
"free-writing prospectus" (as defined pursuant to Rule 405 under the 1933 Act)
(a "Free Writing Prospectus") the first page of each of which is attached as
Annex B hereto and the pricing information annex attached hereto as Annex C. 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
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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 its
effective date or deemed effective date pursuant to Rule 430B under the 1933 Act
(the "Effective Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable requirements
of the 1933 Act and the rules and regulations thereunder (the "1933 Act
Regulations"); and the information in the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the information in the
Prospectus, as of the date of the Prospectus Supplement, did not, and as of the
Closing Date (as hereinafter defined) will not, contain an untrue statement of a
material fact and did not and will not omit to state a material fact necessary
in order to make the information therein, in the light of the circumstances
under which they were made, not misleading, provided, however, that the
Depositor makes no representations, warranties or agreements as to (A) the
information 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 any Underwriter 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 under the Indemnification
Agreements, each dated as of March 17, 2006, between the respective Mortgage
Loan Seller, the Depositor and the Underwriters (the "Mortgage Loan Seller
Information") and 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 second, fourth and ninth paragraphs of the section of the
Prospectus Supplement entitled "Plan of Distribution" and the first two
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
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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 1933 Act) 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.
(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
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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 the enforceability thereof may be
limited by the effect of (A) bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws affecting the enforcement of the
rights of creditors generally, and (B) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law. The Certificates 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 and each Mortgage Loan Purchase 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 and
the Mortgage Loan Purchase Agreements constitute, and as of the Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and binding
agreement enforceable against the Depositor in accordance with its terms, except
as such enforceability may be limited by the effect of (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of the rights of creditors generally, (B) general
principles of equity, whether enforcement is sought in a proceeding in equity or
at law, and (C) public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause
to be conveyed to the Trustee, all of the Depositor's right, title and interest
in and to the Mortgage Loans, free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest (collectively
"Liens") granted by or imposed upon the Depositor, (B) will not have assigned to
any other person any of its right, title or interest in the Mortgage Loans or in
the Pooling and Servicing Agreement or the Certificates, and (C) will have the
power and authority to transfer or cause to be transferred its right, title and
interest in the Mortgage Loans to the Trustee and to sell the Certificates to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired ownership of all of the
Depositor's
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right, title and interest in and to the Mortgage Loans except to the extent
disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(x) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause the
Depositor or the Trust Fund to be, subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xi) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Depositor will report the transfer of
the Mortgage Loans to the Trustee in exchange for the Certificates and the sale
of the Certificates to the Underwriters pursuant to this Agreement as a sale of
the interest in the Mortgage Loans evidenced by the Certificates. The
consideration received by the Depositor upon the sale of the Certificates to the
Underwriters will constitute at least reasonably equivalent value and fair
consideration for the Certificates. The Depositor will be solvent at all
relevant times prior to, and will not be rendered insolvent by, the sale of the
Certificates to the Underwriters. The Depositor is not selling the Certificates
to the Underwriters with any intent to hinder, delay or defraud any of the
creditors of the Depositor.
(xii) The Depositor has not relied on the Underwriters for any
tax, regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Depositor
acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arm's length
between sophisticated parties represented by counsel; (ii) no fiduciary,
advisory or agency relationship between the Depositor and the Underwriters has
been created as a result of any of the transactions contemplated by this
Agreement, irrespective of whether any Underwriter has advised or is advising
the Depositor on other matters; (iii) the Underwriters' obligations to the
Depositor in respect of the offering, and the purchase and sale, of the
Certificates are set forth in this Agreement in their entirety; and (iv) it has
obtained such legal, tax, accounting and other advice as it deems appropriate
with respect to this Agreement and the transactions contemplated hereby and any
other activities undertaken in connection therewith, and it is not relying on
the Underwriters with respect to any such matters.
(xiii) 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 a
REMIC; and the Class R-I, Class R-II and Class R-III Interests will each
constitute the sole class of "residual interests" in the related REMIC. Certain
portions of the Trust Fund will qualify as a grantor trust for federal income
tax purposes under the Code and the Class T Certificates will represent pro rata
beneficial interests such grantor trust.
(xiv) There are no legal or governmental proceedings pending
or, to the knowledge of the Depositor, threatened to which the Depositor is a
party or to which any of the properties of the Depositor are subject that are
required to be described in the Prospectus or the
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Time of Sale Information or necessary in order to make the statements therein in
the light of the circumstances under which they were made, not misleading and
that are not so described, nor are there any contracts or other documents to
which the Depositor is a party or to which the Depositor or any of the
properties of the Depositor are subject that are required to be described in the
Prospectus.
(xv) At the Closing Date, the respective classes of
Certificates shall have been assigned ratings no lower than those set forth in
Schedule I hereto by the nationally recognized statistical rating organizations
identified in Schedule I hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement and the
Certificates payable by the Depositor (other than income taxes) have been paid
or will be paid at or prior to the Closing Date.
(xvii) None of the Depositor or any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first
bona fide offer of the Certificates is made (within the meaning of Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer," as defined in
Rule 405 under the 1933 Act.
(b) Each Underwriter represents and warrants to the
Depositor that:
(i) as of the date hereof and as of the Closing Date, such
Underwriter has complied with all of its obligations hereunder; and
(ii) (A) it has only communicated or caused to be
communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial
Services and Markets Act 2000) received by it in connection with
the issue or sale of the certificates in circumstances in which
Section 21(1) of the Financial Services and Markets Act 2000
does not apply to the Depositor; and
(B) it has complied and will comply with all
applicable provisions of the Financial Services and Markets Act
2000 with respect to anything done by it in relation to the
certificates in, from or otherwise involving the United Kingdom.
2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance
upon the representations and warranties herein contained, the Depositor shall
sell to the Underwriters, and each Underwriter shall, severally and not jointly,
purchase from the Depositor, at the related purchase price set forth on Schedule
I hereto, Certificates of each class thereof having an actual or notional amount
as set forth on Schedule I hereto opposite their names. There will be added
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to the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from March 1, 2006 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 March 28, 2006,
which date and time may be postponed by agreement between the Underwriters and
the Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor by the Underwriters of the purchase
prices of the Certificates as set forth in Schedule I 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the
Underwriters and the Depositor.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer
the Certificates for sale as set forth in the Prospectus. It is further
understood that the Depositor, in reliance upon Policy Statement 105, has not
and will not file an offering statement pursuant to Section 352-e of the General
Business Law of the State of New York with respect to the Certificates. Each
Underwriter severally and not jointly therefore agrees that sales of the
Certificates made by such Underwriter in and from the State of New York will be
made only to institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses (as defined below), or portions thereof, subject to the following
conditions (to which such conditions each Underwriter agrees (provided that no
Underwriter shall be responsible for any breach of the following conditions by
any other Underwriter)):
(i) Unless preceded or accompanied by the
Prospectus, the Underwriters shall not convey or deliver 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 "▇▇▇▇▇▇/PSA" no-action letters or any "ABS informational
and computational material," as defined in Item 1101(a) of Regulation AB
under the 1933
8
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(b)(ii) will
constitute all Free Writing Prospectuses of the type described therein
that were furnished to prospective investors by such Underwriter in
connection with its offer and sale of the Certificates.
(iv) Each Underwriter represents and warrants to the
Depositor that each Free Writing Prospectus required to be provided by
it to the Depositor pursuant to Section 4(b)(ii) did not, as of the Time
of Sale, and will not as of the Closing Date, include any untrue
statement of a material fact or omit any material fact necessary to make
the statements contained therein (when read in conjunction with the Time
of Sale Information), in light of the circumstances under which they
were made, not misleading; provided however, that such Underwriter makes
no representation to the extent such misstatements or omissions were the
result of any inaccurate Issuer Information, which information was not
corrected by Corrective Information subsequently supplied by the
Depositor or any Mortgage Loan Seller to such Underwriter within a
reasonable period of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission
the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion
thereof delivered by any Underwriter to the Depositor pursuant
to Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which
the Depositor or any person acting on its behalf provided,
authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the
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Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or
otherwise disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be
required to file (1) Issuer Information contained in any
Underwriter Free Writing Prospectus or Free Writing Prospectus
of any other offering participant other than the Depositor, if
such information is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with the
Commission that relates to the offering of the Certificates, or
(2) any Free Writing Prospectus or portion thereof that contains
a description of the Certificates or the offering of the
Certificates which does not reflect the final terms thereof.
The Depositor is required to file such Free Writing Prospectuses
with the Commission in electronic format and the Underwriters
shall use reasonable efforts to provide to the Depositor such
Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF,
except to the extent that the Depositor, in its sole discretion,
waives such requirements,
(vi) Any Free Writing Prospectus required to be filed
pursuant to Section 4(b)(v) by the Depositor shall be filed with the
Commission not later than the date of first use of the Free Writing
Prospectus, except that:
(A) Any Free Writing Prospectus or portion
thereof required to be filed that contains only the description
of the final terms of the Certificates shall be filed by the
Depositor with the Commission within two days of the later of
the date such final terms have been established for all classes
of Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion
thereof required to be filed that contains only ABS
Informational and Computational Material shall be filed by the
Depositor with the Commission not later than the later of the
due date for filing the final Prospectus relating to the
Certificates pursuant to Rule 424(b) under the 1933 Act or two
business days after the first use of such Free Writing
Prospectus; and
(C) Any Free Writing Prospectus required to
be filed pursuant to Section 4(b)(v)(C) shall, if no payment has
been made or consideration has been 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.
10
(viii) Notwithstanding the provisions of Section 4(b)
(vii), each Underwriter shall file with the Commission any Free Writing
Prospectus for which such Underwriter or any person acting on its behalf
provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Depositor or
any other offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating written
communications and for which no payment was made or consideration given
by or on behalf of the Depositor or any other offering participant, not
later than four business days after such Underwriter becomes aware of
the publication, radio or television broadcast or other dissemination of
the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)
(v) and 4(b)(vii), neither the Depositor nor any Underwriter shall be
required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission, and no Underwriter shall be
required to file any Free Writing Prospectus to the extent that the
information contained therein is included in a prospectus or Free
Writing Prospectus previously filed that relates to the offering of the
Certificates.
(x) The Depositor and the Underwriters each agree
that any Free Writing Prospectuses prepared by it shall contain the
following legend, or substantially equivalent legend that complies with
Rule 433 of the 1933 Act:
The depositor has filed a registration statement
(including a prospectus) with the SEC for the offering
to which this communication relates. Before you invest,
you should read the prospectus in that registration
statement and other documents the depositor has filed
with the SEC for more complete information about the
depositor, the issuing trust, and this offering. You may
get these documents for free by visiting ▇▇▇▇▇ on the
SEC Web site at ▇▇▇.▇▇▇.▇▇▇. 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 ▇-▇▇▇-▇▇▇-▇▇▇▇.
(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
11
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
12
concerning the Certificates to a prospective investor unless such
information is preceded or accompanied by the Prospectus.
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.
(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 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.
13
(e) If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the Certificates
is required to be delivered under the 1933 Act, any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the Prospectus not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser of Certificates, if the Depositor has
actual knowledge of the event, and if the event is not otherwise disclosed in a
filing to the Registration Statement pursuant to Section 13 or 15(d) of the 1934
Act, the Depositor will forthwith amend or supplement the Prospectus so that, as
so amended or supplemented, the Prospectus will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, and the Depositor will furnish
to each Underwriter a reasonable number of copies of such amendment or
supplement.
(f) The Depositor will endeavor to arrange for the
qualification of the Certificates for sale under the applicable securities laws
of such states and other jurisdictions of the United States as the Underwriters
may reasonably designate and will maintain such qualification in effect so long
as required for the initial distribution of Certificates; provided, however,
that the Depositor shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to file a general consent to
service of process in any jurisdiction.
(g) The Depositor will use the net proceeds received by it
from the sale of the Certificates in the manner specified in the Prospectus
under "Use of Proceeds".
(h) Whether or not the transactions contemplated by this
Agreement are consummated, the Depositor will pay or cause to be paid all
expenses incident to the performance of the obligations of the Depositor under
this Agreement, including, without limitation, (i) the fees, disbursements and
expenses of the Depositor's counsel and accountants in connection with the
purchase of the Mortgage Loans and the issuance and sale of the Certificates,
(ii) all fees and expenses incurred in connection with the registration and
delivery of the Certificates under the 1933 Act, and all other fees or expenses
in connection with the preparation and filing of the Registration Statement, the
Time of Sale Information, any Issuer Free Writing Prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities specified above, (iii) all costs and
expenses related to the transfer and delivery of the Certificates to the
Underwriters, including any transfer or other taxes payable thereon, (iv) the
costs of printing or producing any "blue sky" memorandum in connection with the
offer and sale of the Certificates under state securities laws and all expenses
in connection with the qualification of the Certificates for the offer and sale
under state securities laws as provided in Section 5(f), including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the "blue sky"
memorandum, (v) the cost of printing the Certificates, (vi) the upfront costs
and charges of any transfer agent, registrar or depository, (vii) the fees and
expenses of the rating agencies incurred in connection with the issuance and
sale of the Certificates and (viii) all other costs and expenses incident to the
performance of the obligations of the Depositor hereunder for which provision is
not otherwise made in this Section. Except as herein provided, the Underwriters
shall be responsible for the payment of all costs and
14
expenses incurred by them, including, without limitation, (i) the fees and
disbursements of counsel of the Underwriters and (ii) such additional costs
arising out of any Free Writing Prospectuses prepared by or on behalf of the
Underwriters and the filing of such materials, if required, with the Commission.
(i) The Depositor shall obtain a letter from 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 and the Underwriters, as a result of which they have determined that
the information included in the Time of Sale Information that the accountants
have examined in accordance with such agreed upon procedures, is accurate except
as to such matters that are not deemed by the Depositor or the Underwriters to
be material.
6. Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated to
it as set forth on Schedule I hereto shall be subject to the accuracy 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 of its obligations hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the Depositor's knowledge, threatened by the Commission
and the Prospectus Supplement and each Free Writing Prospectus required to be
filed by the Depositor pursuant to Section 4(b) shall have been filed or
transmitted for filing by means reasonably calculated to result in a filing with
the Commission pursuant to Rule 424(b) under the 1933 Act or Rule 433 under the
1933 Act, as applicable.
(b) On the Closing Date, 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
15
its terms, except as enforceability may be limited by (1)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement
of the rights of creditors generally, (2) general principles of
equity, whether enforcement is sought in a proceeding in equity
or at law and (3) such other exceptions as are reasonably
acceptable to the Underwriters.
(D) The Certificates, when duly and validly
executed, authenticated and delivered in accordance with the
Pooling and Servicing Agreement and paid for in accordance with
this Agreement, will be entitled to the benefits of the Pooling
and Servicing Agreement.
(E) The Registration Statement was declared
effective under the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act and not withdrawn, and no proceedings for
that purpose have been initiated or threatened by the
Commission.
(F) At the time it became effective, the
Registration Statement 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
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
16
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 nothing has come to such counsel's attention
that has caused it to believe that (i), in the case of counsel to the
Depositor, the Registration Statement, the Prospectus or the Time of
Sale Information, and (ii) in the case of counsel to the Underwriters,
the Prospectus or the Time of Sale Information (in each case other than
any financial statements and supporting schedules and statistical and/or
accounting information included therein, as to which no statement need
be made), in the case of the Registration Statement, as of the time it
became effective, in the case of the Prospectus, as of the date thereof
or as of the Closing Date, and as of the Time of Sale, in the case of
the Time of Sale Information, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Such statement shall be based upon
conferences and telephone conversations with representatives of the
parties hereto, the Mortgage Loan Sellers, the Master Servicers, the
Special Servicer, the Certificate Administrator, the Tax Administrator
and the Trustee and such statement 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.
17
(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 Code and of the Excess Interest
Grantor Trust as a grantor trust under the Code, and (ii) to the effect that the
statements in the Base Prospectus and the Prospectus Supplement under the
headings "Material Federal Income Tax Consequences" and "Certain ERISA
Considerations", to the extent that they constitute matters of federal law or
legal conclusions with respect thereto, while not purporting to discuss all
possible consequences of investment in the Certificates, are correct in all
material respects with respect to those consequences or matters that are
discussed therein. Such opinion(s) may express its (their) reliance as to
factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion(s) may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto. Such opinion(s) may be
qualified as an opinion only on the federal tax and ERISA law of the United
States.
(d) The Depositor shall have delivered to each Underwriter a
certificate, dated the Closing Date, and signed by 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, the 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) Each Mortgage Loan Seller shall have delivered to each
Underwriter a certificate, dated the Closing Date, and signed by the President,
a Senior Vice President or a Vice President of the Mortgage Loan Seller to the
effect that:
18
(i) the representations and warranties of the
Mortgage Loan Seller in the respective Mortgage Loan Purchase Agreement
are true and correct in all material respects except as indicated on
Schedule A thereto;
(ii) the Mortgage Loan Seller has, in all material
respects, complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied under the respective
Mortgage Loan Purchase Agreement at or prior to the Closing Date; and
(iii) since the date of this Agreement, there has been
no material adverse change in the financial condition of the Mortgage
Loan Seller.
(f) The Depositor and 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.
(g) The Depositor shall have received the accountant's
letters specified in Section 5(i).
(h) Each Underwriter shall have received, with respect to
each of the Master Servicers, the Special Servicer, the Certificate
Administrator, the Tax Administrator and the Trustee, 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), 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.
19
(i) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change, in or
affecting the business or properties of the Depositor or a Mortgage Loan Seller
(including any of the Mortgage Loans) which such Underwriter concludes, in the
reasonable judgment of such Underwriter, materially impairs the investment
quality of the Certificates so as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Certificates as
contemplated by the Time of Sale Information (excluding the Corrective
Information) and the Prospectus.
(j) The Certificates shall have been assigned ratings by the
Rating Agencies (as defined in the Pooling and Servicing Agreement) no less than
those set forth on Schedule I and such ratings shall not have been withdrawn,
suspended or qualified.
(k) The Underwriters shall have received copies of any
opinions of counsel to the Depositor supplied to the Rating Agencies relating to
certain matters with respect to the Certificates. Any such opinions shall be
dated the Closing Date and addressed to the Underwriters or accompanied by
reliance letters addressed to the Underwriters.
(l) The Depositor shall have furnished to the Underwriters
such further opinions, 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 any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, not misleading, or any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus or any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact contained in 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 in the Prospectus
as to which any Underwriter has agreed to indemnify the Depositor pursuant to
20
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 alleged untrue statements or omissions
or alleged untrue 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 Liabilities caused by any (i) untrue statements or alleged untrue
statements of a material fact, or omissions or alleged omissions to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in the Underwriter
Information and (ii) untrue statements or alleged untrue statements of a
material fact, in any Underwriter Free Writing Prospectus prepared by or on
behalf of such Underwriter or omission or alleged omission to state in such
Underwriter Free Writing Prospectus a material fact necessary in order to make
the statements therein (when read in conjunction with the Time of Sale
Information), in the light of the circumstances under which they were made, not
misleading; provided, that no Underwriter shall be obligated to so indemnify and
hold harmless (A) to the extent such Liabilities are caused by a misstatement or
omission resulting from an error or omission in the Issuer Information which was
not corrected 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 subsection (a)
or (b) of this Section 7. Upon request of the indemnified party, the
indemnifying party shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding as incurred. If any
action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party may participate at its
own expense in the defense of any such action. The indemnifying party may elect
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from the indemnified party. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have agreed to the retention of such counsel, (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same
21
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, which consent shall not be unreasonably
withheld. However, if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party shall indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party, without any admission of fault,
culpability or failure to act or on behalf of the indemnified party, in
connection with all matters relating to the proceeding that have been asserted
against the indemnified party in such proceeding by the other parties to such
settlement, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is
due in accordance with its terms but is for any reason unavailable to an
indemnified party under subsection (a) or (b), or insufficient to hold harmless
an indemnified party, in respect of any losses, claims, damages or liabilities
under subsection (a) or (b) on grounds of public policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Depositor on the
one hand and the applicable Underwriter on the other from the offer and sale of
the Certificates pursuant hereto or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Depositor on the one hand and of such
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or other liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Depositor on the one hand, and such Underwriter on the other, in connection with
the offering of the Certificates underwritten by such Underwriter shall be
deemed to be in the same respective proportions that the total proceeds from the
sale of the Certificates underwritten by such Underwriter (before deducting
expenses) received by the Depositor and the amount by which (i) the total price
received by such Underwriter with respect to the initial resale to investors in
the Certificates acquired by such Underwriter exceeds (ii) the total
underwriting discounts and commissions received by such Underwriter (or, if no
such Underwriter discounts and commissions are payable hereunder, the
22
amount of the other fees payable to such Underwriter in connection with the
offering of the Certificates), bear to the aggregate offering price of the
Certificates. The relative fault of the Depositor on the one hand and of such
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Depositor or by such Underwriter, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The parties hereto agree that it would not be just and
equitable if contribution were determined by pro rata allocation or by any other
method of allocation that does not take account of the considerations referred
to in subsection (d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or other liabilities referred to in
this Section 7 shall be deemed to include any legal fees and disbursements or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. If any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment.
Notwithstanding the provisions of subsection (d) above or this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which (i) the total underwriting discounts and commissions and other
fees received by such Underwriter in connection with the offering of the
Certificates exceeds (ii) the amount of damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution agreements contained in
this Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Depositor, an Underwriter, any of their respective directors or officers, or any
person controlling the Depositor or such Underwriter within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, and (iii)
acceptance of and payment for any of the Certificates.
(g) The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective amount of
Certificates they have purchased hereunder, and not joint.
(h) Each Underwriter (the "Indemnifying Underwriter") will
indemnify and hold harmless the other Underwriters and each person, if any, who
controls such Underwriter within the meaning of either the 1933 Act or the 1934
Act (the "Non-Indemnifying Underwriter") from and against any and all losses,
claims, damages or liabilities, joint or several, to which the Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact or the omission or alleged
23
omission (when read in conjunction with the Time of Sale Information) to state a
material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading at the Time of Sale,
contained in any Underwriter Free Writing Prospectus prepared by, or on behalf
of, or used or referred to by, such Indemnifying Underwriter or (ii) the failure
of such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Sections 4(b) or 9, and agrees to reimburse such
Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, except to the extent such losses,
claims, damages or liabilities are caused by a misstatement or omission
resulting from an error or omission in the Issuer Information which was not
corrected by Corrective Information subsequently supplied by the Depositor or
any Mortgage Loan Seller to any Underwriter within a reasonable period of time
prior to the Time of Sale. This agreement will be in addition to any liability
that any Underwriter may otherwise have.
8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
in respect of such Underwriter, and shall survive delivery of the Certificates
to the Underwriters.
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 Underwriter shall be obligated 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 3 be increased pursuant
to this Section 9 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 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 Underwriter 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
24
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 in all
material respects with the terms, or to fulfill in all material respects any of
the conditions of, this Agreement, or if for any reason the Depositor shall be
unable to perform in all material respects its obligations under this Agreement.
(b) 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 any 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 the
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. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated shall be directed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq. at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; to the
Depositor, shall be directed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Friend; to LaSalle Financial
Services, Inc., at ▇▇ ▇▇▇▇
25
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇; to Banc
of America Securities LLC at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇; to Greenwich Capital Markets, Inc., addressed
to RBS Greenwich Capital, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇, and as to any party, to such other address as may
hereafter be furnished by such party to the others in writing.
12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriters and the Depositor and
their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their respective successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
13. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
14. Entire Agreement.
This Agreement, together with any contemporaneous written agreements and
any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Certificates, represents the entire agreement
between the Depositor, on the one hand, and the Underwriters, on the other, with
respect to the preparation of the Prospectus, and the conduct of the offering,
and the purchase and sale of the Certificates.
15. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings between the parties hereto relating to the subject matter hereof.
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.
26
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,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
--------------------------------
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. Friend
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Friend
-------------------------------
Title: Managing Director
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LASALLE FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Director
----------------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: Principal
----------------------------
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇-027-22-03
Charlotte, NC 28255
28
GREENWICH CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Title: Senior Vice President
---------------------------
RBS Greenwich Capital
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
29
Annex A
The First Page of the Depositor's Free Writing Prospectus dated March 7, 2006
30
ANNEX B
The First Page of each additional Free Writing Prospectus of the Depositor
31
ANNEX C
Pricing Information Annex
32
SCHEDULE I
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2006-HQ8, Class A-1, Class A-1A, Class A-2, Class A-3, Class A-AB, Class
A-4, Class A-M, Class A-J, Class B, Class C, Class D, Class E and Class F
========================================================================================================================
Underwriters Amount of Certificates to be Purchased Class of Certificates to be Purchased
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $144,800,000 A-1
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 A-1
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-1
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-1
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $509,109,000 A-1A
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 A-1A
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-1A
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-1A
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $130,400,000 A-2
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 A-2
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-2
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-2
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $73,100,000 A-3
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 A-3
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-3
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-3
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $149,000,000 A-AB
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 A-AB
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-AB
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-AB
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $905,453,000 A-4
========================================================================================================================
========================================================================================================================
LaSalle Financial Services, Inc. $0 A-4
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-4
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-4
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $273,123,000 A-M
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 A-M
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-M
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-M
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $198,014,000 A-J
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 A-J
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 A-J
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 A-J
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $17,070,000 B
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 B
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 B
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 B
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $40,969,000 C
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 C
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 C
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 C
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $34,140,000 D
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 D
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 D
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 D
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $13,656,000 E
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 E
========================================================================================================================
========================================================================================================================
Banc of America Securities LLC $0 E
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 E
------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $23,898,000 F
------------------------------------------------------------------------------------------------------------------------
LaSalle Financial Services, Inc. $0 F
------------------------------------------------------------------------------------------------------------------------
Banc of America Securities LLC $0 F
------------------------------------------------------------------------------------------------------------------------
Greenwich Capital Markets, Inc. $0 F
------------------------------------------------------------------------------------------------------------------------
Total $2,731,231,518
========================================================================================================================
SCHEDULE I (CONTINUED)
===================================================================================================
Class Initial Aggregate Approximate Initial Purchase Rating(3)
Designation Principal Amount of Class(1) Pass-Through Rate Price(2) (Moody's/S&P)
---------------------------------------------------------------------------------------------------
A-1 $144,800,000 5.124% 99.9996% Aaa/AAA
---------------------------------------------------------------------------------------------------
A-1A $509,109,000 5.549% 100.5434% Aaa/AAA
---------------------------------------------------------------------------------------------------
A-2 $130,400,000 5.374% 100.5483% Aaa/AAA
---------------------------------------------------------------------------------------------------
A-3 $73,100,000 5.614% 100.5460% Aaa/AAA
---------------------------------------------------------------------------------------------------
A-AB $149,000,000 5.565% 100.5454% Aaa/AAA
---------------------------------------------------------------------------------------------------
A-4 $905,453,000 5.561% 100.5441% Aaa/AAA
---------------------------------------------------------------------------------------------------
A-M $273,123,000 5.610% 100.5444% Aaa/AAA
---------------------------------------------------------------------------------------------------
A-J $198,014,000 5.641% 100.4065% Aaa/AAA
---------------------------------------------------------------------------------------------------
B $17,070,000 5.641% 100.2583% Aa1/AA+
---------------------------------------------------------------------------------------------------
C $40,969,000 5.641% 100.1843% Aa2/AA
---------------------------------------------------------------------------------------------------
D $34,140,000 5.641% 100.0364% Aa3/AA-
---------------------------------------------------------------------------------------------------
E $13,656,000 5.641% 99.5211% A1/A+
---------------------------------------------------------------------------------------------------
F $23,898,000 5.641% 99.3745% A2/A
===================================================================================================
_________________
(1) Subject to a variance of plus or minus 5.0%
(2) Expressed as a percentage of the aggregate stated amount of the relevant
class of Certificates to be purchased. The purchase price shown for each
Class of Certificates is net of accrued interest. The purchase price to be
paid will 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. The purchase price does
not reflect any underwriting discount.
(3) By each of ▇▇▇▇▇'▇ Investor Service ("Moody's") and Standard & Poor's
Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P").