EXHIBIT 1.1
EXECUTION COPY
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-1
UNDERWRITING AGREEMENT
March 22, 2006
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representative of the several
Underwriters listed on Schedule I hereto
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
4 World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., a Delaware corporation (the
"Depositor"), proposes to cause the issuance of, and to sell to the several
Underwriters listed on Schedule I (together, the "Underwriters"), for whom
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated is acting as representative
(in such capacity, the "Representative"), the Commercial Mortgage Pass-Through
Certificates identified in Schedule I hereto (the "Certificates") pursuant to
this Underwriting Agreement, dated March 22, 2006 (this "Agreement"), between
the Depositor and the Underwriters. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and Countrywide Securities Corporation are acting as joint
bookrunning managers with respect to the offering of the Offered Certificates
(in such capacity, the "Lead Underwriters") in the following manner: Countrywide
Securities Corporation is acting as sole bookrunning manager with respect to
4.669% of the Class C Certificates, and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated is acting as sole bookrunning manager with respect to the remainder
of the Class C Certificates and all other classes of Offered Certificates. EHY
Securities (USA), LLC, Banc of America Securities LLC, ▇▇▇▇▇▇▇, Sachs & Co. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated will act as co-managers. The Certificates will
evidence beneficial ownership interests in a trust fund (the "Trust Fund") to be
formed by the Depositor and consisting primarily of a segregated pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans").
Certain of the Mortgage Loans (the "Merrill Mortgage Loans") will be
acquired by the Depositor from ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.
("Merrill") pursuant to the mortgage loan purchase agreement, dated March 22,
2006 (the "Merrill Mortgage Loan Purchase Agreement") between the Depositor and
Merrill. Certain of the Mortgage Loans (the "Countrywide Mortgage Loans") will
be acquired by the Depositor from Countrywide Commercial Real Estate Finance,
Inc. ("Countrywide") pursuant to the mortgage loan purchase agreement, dated
March 22, 2006 (the "Countrywide Mortgage Loan Purchase Agreement") between the
Depositor and Countrywide. Certain of the Mortgage Loans (the "Eurohypo Mortgage
Loans") will be
acquired by the Depositor from Eurohypo AG, New York Branch ("Eurohypo")
pursuant to the mortgage loan purchase agreement, dated March 22, 2006 (the
"Eurohypo Mortgage Loan Purchase Agreement") between the Depositor and Eurohypo.
Merrill, Countrywide and Eurohypo collectively constitute the "Mortgage Loan
Sellers"; and the Merrill Mortgage Loan Purchase Agreement, the Countrywide
Mortgage Loan Purchase Agreement and the Eurohypo 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, Wachovia Bank,
National Association, as master servicer, Midland Loan Services, Inc., as
special servicer and LaSalle Bank National Association, as trustee.
Capitalized terms used herein, but not otherwise defined herein shall have
the meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. 333-126218) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The
Depositor proposes to file with the Commission pursuant to Rule 424(b) under the
1933 Act a supplement to the form of prospectus included in such registration
statement relating to the Certificates and the plan of distribution thereof.
Such registration statement, including the exhibits thereto, and information
that is contained in the Prospectus (as defined below) and is deemed to be part
of and included in such registration statement as it may have been amended or
supplemented at the date of the Prospectus, is hereinafter referred to as the
"Registration Statement"; the prospectus first required to be filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
1933 Act, is hereinafter referred to as the "Base Prospectus"; such supplement
to the Base Prospectus relating to the Certificates, in the form first required
to be filed to satisfy the condition set forth in Rule 172(c) and pursuant to
Rule 424(b) under the 1933 Act (including the Base Prospectus as so
supplemented) is hereinafter referred to as the "Prospectus Supplement"; and the
Base Prospectus and the Prospectus Supplement, together, are hereinafter
referred to as the "Prospectus". A "free writing prospectus" (as defined
pursuant to Rule 405 under the ▇▇▇▇ ▇▇▇) relating to the Certificates is
hereinafter referred to as a "Free Writing Prospectus".
At or prior to the time when sales to purchasers of the Certificates were
first made, which was approximately 1:30 p.m. on March 22, 2006 (the "Time of
Sale"), the Depositor had prepared or caused the preparation of the following
information (collectively, the "Time of Sale Information"): the Depositor's Free
Writing Prospectus dated March 14, 2006 (the "Offering Prospectus") (the cover
page of which is attached hereto as Annex A); the Depositor's prospectus dated
March 22, 2006, relating to the Certificates and previously filed as part of the
Registration Statement; the Term Sheet dated March 13, 2006 relating to the
Certificates (the first page of which is attached as Annex B hereto); the Term
Sheet dated March 22, 2006, relating to the Certificates (the first page of
which is attached as Annex C hereto); and the pricing information annex attached
hereto as Annex D. If, subsequent to the date of this Agreement, the Depositor
and the Lead Underwriter determine that such information included
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an untrue statement of material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and terminate their old
purchase contracts and enter into new purchase contracts with one or more
purchasers of the Certificates, then "Time of Sale Information" as to any such
purchaser will refer to the information conveyed to such purchaser at the time
of entry into the first such new purchase contract, including any information
that corrects such material misstatements or omissions ("Corrective
Information") and "Time of Sale" as to such purchaser will refer to the time and
date on which such new purchase contract was entered into.
1. Representations and Warranties.
(a) The Depositor represents and warrants to the Underwriters as
follows:
(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending or, to the Depositor's knowledge,
threatened by the Commission; the Registration Statement as of its effective
date or deemed effective date pursuant to Rule 430B under the 1933 Act (the
"Effective Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable requirements
of the 1933 Act and the rules and regulations thereunder (the "1933 Act
Regulations"); and the information in the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and the information in the
Prospectus, as of the date of the Prospectus Supplement, did not, and as of the
Closing Date (as hereinafter defined) will not, contain an untrue statement of a
material fact and did not and will not omit to state a material fact necessary
in order to make the information therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Depositor makes no representations, warranties or agreements as to (A) the
information furnished in writing to the Depositor by such Underwriter through
the Lead Underwriters specifically for use in connection with the preparation of
the Time of Sale Information and the Prospectus or any revision or amendment
thereof or supplement thereto and other information in conformity therewith and
in reliance thereon (the "Underwriter Information"), (B) any information for
which the Mortgage Loan Sellers are obligated to indemnify the Underwriters
under the Indemnification Agreements, each dated as of March 22, 2006, between
the respective Mortgage Loan Seller, the Depositor and the Underwriters (the
"Mortgage Loan Seller Information") or (C) any information for which the
Trustee, Master Servicer or Special Servicer is obligated to indemnity the
Underwriters, each under separate indemnification agreements dated as of March
22, 2006 (the "Trustee/Servicer Information") ; and provided, further, that the
Depositor makes no representations, warranties or agreements regarding untrue
statements or omissions in the portions of the Prospectus Supplement under the
heading "Yield and Maturity Considerations" that arise out of or are based upon
untrue statements or omissions in the Mortgage Loan Seller Information. The
Underwriter Information in the Time of Sale Information and the Prospectus
Supplement shall consist of: (i) the first three sentences of the paragraph
immediately above the bolded names of the Underwriters on the cover page of the
Offering Prospectus and the Prospectus Supplement, respectively; (ii) the
subsection entitled "-Relevant Parties - Underwriters" in the summary portion of
the Offering Prospectus and the Prospectus Supplement, respectively; and (iii)
the
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second, fourth and eighth paragraphs of the section of the Offering Prospectus
and the Prospectus Supplement, respectively, entitled "Method of Distribution".
(ii) The Time of Sale Information, at the Time of Sale, did not, and
at the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that the Depositor makes no representation and warranty with respect to
(A) any Underwriter Information contained in or omitted from the Time of Sale
Information and/or any information that is consistent with such Underwriter
Information, (B) any Mortgage Loan Seller Information contained in or omitted
from such Time of Sale Information or (C) any Trustee/Servicer Information
contained in or omitted from such Time of Sale Information. The parties
acknowledge that none of the Underwriters has furnished any Underwriter
Information to the Depositor expressly for use in the Time of Sale Information
(other than the Offering Prospectus).
(iii) The Depositor (including its agents and representatives other
than the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not make, use, prepare, authorize,
approve or refer to any "written communication" (as defined in Rule 405 under
the ▇▇▇▇ ▇▇▇) that constitutes an offer to sell or solicitation of an offer to
buy the Certificates other than (i) the Prospectus, (ii) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or
Rule ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇▇▇) the Time of Sale Information, and (iv) each
other written communication of the Depositor or its agents and representatives
approved by the Representative either in writing in advance or in any other
manner mutually agreed to by the Representative and the Depositor (each such
communication referred to in clause (iii) and this clause (iv) constituting an
"issuer free writing prospectus", as defined in Rule 433(h) under the 1933 Act,
being referred to as an "Issuer Free Writing Prospectus"). Each such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will comply, in
all material respects with the 1933 Act and the rules and regulations
promulgated thereunder, has been filed or will be filed in accordance with
Section 4 (to the extent required thereby). Each such Issuer Free Writing
Prospectus referred to in clause (iv) of the second preceding sentence did not
at the Time of Sale, and at the Closing Date will not, contain any untrue
statements of a material fact or (when read in conjunction with the other Time
of Sale Information) omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Depositor makes no representation and
warranty with respect to (i) any Underwriter Information contained in or omitted
from the Prospectus or the Time of Sale Information and/or any information that
is consistent with such Underwriter Information, (ii) any Mortgage Loan Seller
Information contained in or omitted from any such Issuer Free Writing Prospectus
or (iii) any Trustee/Servicer Information contained in or omitted from any such
Issuer Free Writing Prospectus. The parties acknowledge that none of the
Underwriters has furnished any Underwriter Information to the Depositor
expressly for use in any Issuer Free Writing Prospectus referred to in clause
(iv) of the third preceding sentence.
(iv) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
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(v) The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor and the consummation of the
transactions contemplated herein and therein by the Depositor and compliance by
the Depositor with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and will not (A) contravene any
provision of the certificate of incorporation or by-laws of the Depositor or
applicable law or (B) conflict with or constitute a breach of or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Depositor pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Depositor
is a party or by which it may be bound or to which any of the property or assets
of the Depositor is subject, which conflict, breach, default, lien, charge or
encumbrance is reasonably likely to materially and adversely affect the
Depositor's ability to perform its obligations under this Agreement or the
Pooling and Servicing Agreement.
(vi) The Certificates have been duly authorized for issuance and sale
(or will have been so authorized prior to the issuance thereof) pursuant to this
Agreement and the Pooling and Servicing Agreement. When issued, authenticated
and delivered pursuant to the provisions of this Agreement and of the Pooling
and Servicing Agreement against payment of the consideration therefor in
accordance with this Agreement, the Certificates will be duly and validly issued
and outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement, except as 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 has been, and as of the Closing Date the Pooling
and Servicing Agreement will be, duly authorized, executed and delivered by the
Depositor. This Agreement constitutes, and as of the Closing Date the Pooling
and Servicing Agreement will constitute, a legal, valid and binding agreement
enforceable against the Depositor in accordance with its terms, except as such
enforceability may be limited by the effect of (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting the
enforcement of the rights of creditors generally, (B) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(C) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
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(ix) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause to
be conveyed to the Trustee, all of the Depositor's right, title and interest in
and to the Mortgage Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively "Liens")
granted by or imposed upon the Depositor, (B) will not have assigned to any
other person any of its right, title or interest in the Mortgage Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer or cause to be transferred its right, title and
interest in the Mortgage Loans to the Trustee and to sell the Certificates to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans except to the
extent disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(x) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not cause the
Depositor or the Trust Fund to be, subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940, as amended (the
"1940 Act").
(xi) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to this Agreement as a sale of the
interest in the Mortgage Loans evidenced by the Certificates. The consideration
received by the Depositor upon the sale of the Certificates to the Underwriters
will constitute at least reasonably equivalent value and fair consideration for
the Certificates. The Depositor will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Certificates to the
Underwriters. The Depositor is not selling the Certificates to the Underwriters
with any intent to hinder, delay or defraud any of the creditors of the
Depositor.
(xii) The Depositor has not relied on the Underwriters for any tax,
regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Depositor
acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arm's length
between sophisticated parties represented by counsel; (ii) no fiduciary,
advisory or agency relationship between the Depositor and the Underwriters has
been created as a result of any of the transactions contemplated by this
Agreement, irrespective of whether any Underwriter has advised or is advising
the Depositor on other matters; (iii) the Underwriters' obligations to the
Depositor in respect of the offering, and the purchase and sale, of the
Certificates are set forth in this Agreement in their entirety; and (iv) it has
obtained such legal, tax, accounting and other advice as it deems appropriate
with respect to this Agreement and the transactions contemplated hereby and any
other activities undertaken in connection therewith, and it is not relying on
the Underwriters with respect to any such matters.
(xiii) The Trust Fund (other than those portions specified in the
Pooling and Servicing Agreement) will qualify as two separate real estate
mortgage investment conduits
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(each, a "REMIC") for federal income tax purposes pursuant to Section 860D of
the Internal Revenue Code of 1986, as amended (the "Code"); the Regular
Certificates will constitute "regular interests" in a REMIC; and the Class R
Certificates will evidence the sole class of "residual interests" in each
related REMIC.
(xiv) There are no legal or governmental proceedings pending or, to
the knowledge of the Depositor, threatened to which the Depositor is a party or
to which any of the properties of the Depositor are subject that are required to
be described in the Prospectus or the Time of Sale Information or necessary in
order to make the statements therein in the light of the circumstances under
which they were made, not misleading and that are not so described, nor are
there any contracts or other documents to which the Depositor is a party or to
which the Depositor or any of the properties of the Depositor are subject that
are required to be described in the Prospectus.
(xv) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I hereto by
the nationally recognized statistical rating organizations identified in
Schedule I hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other than
income taxes) have been paid or will be paid at or prior to the Closing Date.
(xvii) None of the Depositor or any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first bona
fide offer of the Certificates is made (within the meaning of Rule 164(h)(2)
under the ▇▇▇▇ ▇▇▇) will not be, an "ineligible issuer," as defined in Rule 405
under the ▇▇▇▇ ▇▇▇.
(b) Each Underwriter represents and warrants to the Depositor that, as
of the date hereof and as of the Closing Date, such Underwriter has complied
with all of its obligations hereunder.
2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Depositor shall sell to
the Underwriters, and each Underwriter shall, severally and not jointly,
purchase from the Depositor, at the related purchase price set forth on Schedule
I hereto, Certificates of each class thereof having an actual or notional amount
as set forth on Schedule I hereto opposite their names plus, if applicable,
accrued interest on the actual principal amount or notional amount thereof at
the applicable Pass-Through Rate from March 1, 2006 to but excluding the Closing
Date (defined below).
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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 30, 2006,
which date and time may be postponed by agreement between the Underwriters and
the Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor by the Underwriters of the purchase
prices of the Certificates as set forth in Schedule I (together with the
interest accrued thereon as contemplated by Section 2 hereof) in immediately
available Federal funds wired to such bank as may be designated by the
Depositor, against delivery of the Certificates. Delivery of the Certificates
will be made in book-entry form through the facilities of The Depository Trust
Company ("DTC"). Each class of Certificates will be represented by one or more
definitive global Certificates to be deposited by or on behalf of the Depositor
with DTC or the Trustee. The Certificates will be made available for examination
by the Underwriters not later than 10:00 a.m. New York City time on the last
business day prior to the Closing Date. The closing of the transactions
contemplated hereby shall be made at the offices of Sidley Austin LLP, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be
agreed upon by the Underwriters and the Depositor.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon Policy Statement 105, has not and will not
file an offering statement pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates. Each Underwriter
severally and not jointly therefore agrees that sales of the Certificates made
by such Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses, or portions thereof, subject to the following conditions (to which
such conditions each Underwriter agrees (provided that no Underwriter shall be
responsible for any breach of the following conditions by any other
Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver, and hereby represent that they
have not conveyed or delivered, any written communication to any person in
connection with the initial offering of the Certificates, unless such
written communication (1) is made in reliance on Rule 134 under the 1933
Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B
under the 1933 Act, or (3) constitutes Time of Sale Information or a Free
Writing Prospectus that does not constitute (but is in all material
respects consistent with) Time of Sale Information. The Underwriters shall
not convey or deliver in connection with the initial offering of the
Certificates any "computational materials" or "ABS term sheets" in reliance
on the "▇▇▇▇▇▇/PSA" no-action letters or any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the 1933 Act ("ABS Informational and Computational Material"), in reliance
upon Rules 167 and 426 under the 1933 Act.
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(ii) Each Underwriter shall deliver, and hereby represents and
warrants that it has delivered, to the Depositor, no later than two
business days prior to the date of first use thereof or such later date as
may be agreed to by the Depositor, (a) any Free Writing Prospectus that was
prepared by or on behalf of such Underwriter (an "Underwriter Free Writing
Prospectus") and that contains or contained any "issuer information," as
defined in Rule 433(h) under the 1933 Act and footnote 271 of the
Commission's Securities Offering Reform Release No. 33-8591 ("Issuer
Information") (which the parties hereto agree includes, without limitation,
Mortgage Loan Seller Information), and (b) any Free Writing Prospectus or
portion thereof prepared by or on behalf of such Underwriter that contains
or contained only a description of the final terms of the Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials may be delivered by an
Underwriter to the Depositor not later than the later of (A) two business
days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act or such later date as may be agreed to by the
Depositor or (B) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor
that the Free Writing Prospectuses furnished or to be furnished to the
Depositor by such Underwriter pursuant to or as contemplated by Section
4(b)(ii) will constitute all Free Writing Prospectuses of the type
described therein that were furnished to prospective investors by such
Underwriter in connection with its offer and sale of the Certificates.
(iv) Each Underwriter represents and warrants to the Depositor
that each Free Writing Prospectus provided or required to be provided by it
to the Depositor pursuant to or as contemplated by Section 4(b)(ii) did
not, as of the Time of Sale, and will not as of the Closing Date, include
any untrue statement of a material fact or omit any material fact necessary
to make the statements contained therein (when read in conjunction with the
Time of Sale Information), in light of the circumstances under which they
were made, not misleading; provided however, that such Underwriter makes no
representation to the extent such misstatements or omissions were the
result of any inaccurate Issuer Information, which information was not
corrected by Corrective Information subsequently supplied by the Depositor
or any Mortgage Loan Seller to such Underwriter within a reasonable period
of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the
following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Depositor pursuant to Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which the Depositor or
any person (exclusive of an Underwriter) acting on its behalf
provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Depositor
or any other offering participant that is in
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the business of publishing, radio or television broadcasting or
otherwise disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be required to
file (1) Issuer Information contained in any Underwriter Free Writing
Prospectus or Free Writing Prospectus of any other offering
participant other than the Depositor, if such information is included
or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms
thereof.
The Depositor is required to file such Free Writing Prospectuses with
the Commission in electronic format and the Underwriters shall use
reasonable efforts to provide to the Depositor such Free Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or
Microsoft Excel(R) format and not in a PDF, except to the extent that
the Depositor, in its sole discretion, waives such requirements,
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b)(v) by the Depositor shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that (subject to compliance by the Underwriters with Section 4(b)(ii)
hereof in cases where an Underwriter must deliver the subject Free Writing
Prospectus or portion thereof to the Depositor):
(A) Any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final terms of
the Certificates shall be filed by the Depositor with the Commission
within two days of the later of the date such final terms have been
established for all classes of Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material shall 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
10
Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination not later than the date of the first use of such
Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(b)(vii), each
Underwriter shall file with the Commission any Free Writing Prospectus for
which such Underwriter or any person acting on its behalf provided,
authorized or approved information that is prepared and published or
disseminated by a person unaffiliated with the Depositor or any other
offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on behalf of
the Depositor or any other offering participant, not later than four
business days after such Underwriter becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v) and
4(b)(vii), neither the Depositor nor any Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission, and no Underwriter shall be required to file any Free Writing
Prospectus to the extent that the information contained therein is included
in a prospectus or Free Writing Prospectus previously filed that relates to
the offering of the Certificates.
(x) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the 1933
Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the depositor has filed
with the SEC for more complete information about the depositor, the
issuing entity, and this offering. You may get these documents for
free by visiting ▇▇▇▇▇ 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
11
notify the Underwriters of such untrue statement or omission within one
business day after discovery and the Depositor shall, if requested by the
Underwriters, prepare and deliver to the Underwriters a Free Writing
Prospectus that corrects the material misstatement or omission in the
Defective Issuer Free Writing Prospectus (such corrected Issuer Free
Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(B) If any Underwriter becomes aware that, as of the Time of
Sale, any Underwriter Free Writing Prospectus delivered to an investor
in any Certificates contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with the Time
of Sale Information), in light of the circumstances under which they
were made, not misleading (together with a Defective Issuer Free
Writing Prospectus, a "Defective Free Writing Prospectus"), such
Underwriter shall notify the Depositor of such untrue statement or
omission within one business day after discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or omission
from the Defective Free Writing Prospectus (together with a
Corrected Issuer Free Writing Prospectus, a "Corrected Free
Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that
the prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of such
agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as described
in Section IV.A.2.c of Commission's Securities Offering Reform
Release No. 33-8591.
(D) If the Defective Free Writing Prospectus was an Issuer
Free Writing Prospectus, and the Underwriters shall in good faith
incur any costs to an investor in connection with the reformation of
the contract of sale with the investor, the Depositor agrees to
reimburse the Underwriters for such costs; provided that, before
incurring such costs, the Underwriters first permit the Depositor
access to the applicable investor and an opportunity to attempt to
mitigate such costs through direct negotiation with such investor.
12
(xiii) Each Underwriter covenants with the Depositor that after
the Prospectus is available such Underwriter shall not distribute any
written information concerning the Certificates to a prospective investor
unless such information is preceded or accompanied by the Prospectus.
(c) Each Underwriter further represents and warrants that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the Financial
Services and Markets Act 2000) received by it in connection with the issue or
sale of the certificates in circumstances in which Section 21(1) of the
Financial Services and Markets ▇▇▇ ▇▇▇▇ does not apply to the Depositor; and
(ii) it has complied and will comply with all applicable provisions of
the Financial Services and Markets ▇▇▇ ▇▇▇▇ with respect to anything done by it
in relation to the certificates in, from or otherwise involving the United
Kingdom.
(iii) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Underwriter represents and agrees with the Depositor that with
effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the "Relevant Implementation Date")
such Underwriter has not made and will not make an offer of the Certificates to
the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Certificates which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that such Underwriter may, with effect from and including the
Relevant Implementation Date, make an offer of the Certificates to the public in
that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year; (2) a total
balance sheet of more than (euro)43,000,000 and (3) an annual net turnover
of more than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(C) in any other circumstances which do not require the
publication by the Depositor of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of the
Certificates to the public" in relation to any Certificates in any Relevant
Member State means the communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates to be offered so as
to enable an investor to decide to purchase or subscribe
13
the Certificates, as the same may be varied in that Member State by any measure
implementing the Prospectus Directive in that Member State and the expression
"Prospectus Directive" means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(d) ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated represents and
warrants to the Depositor that it has the authority to act as Representative of
the Underwriters and to bind the Underwriters hereto.
5. Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(a) The Depositor will give each of the Underwriters notice of its
intention to prepare, use, authorize, approve, refer to or file any Issuer Free
Writing Prospectus or to file or prepare (i) any amendment to the Registration
Statement at any time prior to the Closing Date or (ii) any amendment or
supplement to the Prospectus (including any revised prospectus that the
Depositor proposes for use by the Underwriters in connection with the offering
of the Certificates and that differs from the prospectus on file at the
Commission at the time the Registration Statement became effective, whether or
not such revised prospectus is required to be filed pursuant to Rule 424(b) of
the 1933 Act Regulations) at any time during the period when a prospectus
relating to the Certificates is required to be delivered under the 1933 Act, and
the Depositor will furnish the Underwriters with copies of any such Issuer Free
Writing Prospectus, amendment or supplement a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or
file any such amendment or supplement or use any such prospectus to which the
Underwriters shall reasonably object.
(b) The Depositor will promptly give the Lead Underwriters notice of
(i) any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information relating to the
Certificates, (ii) any written notification received by the Depositor of
suspension of qualification of the Certificates for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (iii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or, to the knowledge of the Depositor,
threatening any proceeding for that purpose. The Depositor will use its best
efforts to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(c) The Depositor will cause the Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule. Subject to Section 4, the Depositor will cause each Issuer Free Writing
Prospectus to be transmitted for filing pursuant to Rule 433 under the 1933 Act
by means reasonably calculated to result in filing with the Commission pursuant
to said rule.
(d) The Depositor will furnish to the Lead Underwriters, from time to
time during the period when a prospectus relating to the Certificates is
required to be delivered under
14
the 1933 Act, such number of copies of the Prospectus and each Free Writing
Prospectus (as amended or supplemented) as the Lead Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the Securities Exchange
Act of 1934, as amended (the "1934 Act") or the respective applicable rules and
regulations of the Commission thereunder.
(e) If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser of Certificates, if the Depositor has actual
knowledge of the event, and if the event is not otherwise disclosed in a filing
to the Registration Statement pursuant to Section 13 or 15(d) of the 1934 Act,
the Depositor will forthwith amend or supplement the Prospectus so that, as so
amended or supplemented, the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Depositor will furnish to the
Lead Underwriters a reasonable number of copies of such amendment or supplement.
(f) The Depositor will endeavor to arrange for the qualification of
the Certificates for sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Lead Underwriters may
reasonably designate and will maintain such qualification in effect so long as
required for the initial distribution of Certificates; provided, however, that
the Depositor shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general consent to
service of process in any jurisdiction.
(g) The Depositor will use the net proceeds received by it from the
sale of the Certificates in the manner specified in the Prospectus under "Use of
Proceeds".
(h) Whether or not the transactions contemplated by this Agreement are
consummated, the Depositor will pay or cause to be paid all expenses incident to
the performance of the obligations of the Depositor under this Agreement,
including, without limitation, (i) the fees, disbursements and expenses of the
Depositor's counsel and accountants in connection with the purchase of the
Mortgage Loans and the issuance and sale of the Certificates, (ii) all fees and
expenses incurred in connection with the registration and delivery of the
Certificates under the 1933 Act, and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, the Time of Sale
Information, any Issuer Free Writing Prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities specified above, (iii) all costs and expenses
related to the transfer and delivery of the Certificates to the Underwriters,
including any transfer or other taxes payable thereon, (iv) the costs of
printing or producing any "blue sky" memorandum in connection with the offer and
sale of the Certificates under state securities laws and all expenses in
connection with the qualification of the Certificates for the offer and sale
under state securities laws as provided in Section 5(f), including filing fees
and the reasonable fees and disbursements of counsel for the Lead Underwriters
in connection with such qualification and in connection with the "blue sky"
memorandum, (v) the cost of printing the
15
Certificates, (vi) the upfront costs and charges of any transfer agent,
registrar or depository, (vii) the fees and expenses of the rating agencies
incurred in connection with the issuance and sale of the Certificates and (viii)
all other costs and expenses incident to the performance of the obligations of
the Depositor hereunder for which provision is not otherwise made in this
Section. Except as herein provided, the Underwriters shall be responsible for
the payment of all costs and expenses incurred by them, including, without
limitation, (i) the fees and disbursements of counsel of the Underwriters and
(ii) such additional costs arising out of any Free Writing Prospectuses prepared
by or on behalf of the Underwriters and the filing of such materials, if
required, with the Commission.
(i) The Depositor shall obtain a letter from Ernst & Young LLP,
certified public accountants, satisfactory in form and substance to the
Depositor and the Lead Underwriters, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by the
Depositor and the Lead Underwriters, as a result of which they have determined
that the information included in the Time of Sale Information that the
accountants have examined in accordance with such agreed upon procedures, is
accurate except as to such matters that are not deemed by the Depositor or the
Lead Underwriters to be material.
6. Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated to it
as set forth on Schedule I hereto shall be subject to the accuracy in all
material respects of the representations and warranties on the part of the
Depositor contained herein as of the date hereof and as of the Closing Date, to
the performance by the Depositor in all material respects of its obligations
hereunder and to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the Depositor's knowledge, threatened by the Commission and the
Prospectus Supplement and each Free Writing Prospectus required to be filed by
the Depositor pursuant to Section 4(b) shall have been filed or transmitted for
filing by means reasonably calculated to result in a filing with the Commission
pursuant to Rule 424(b) under the 1933 Act or Rule 433 under the 1933 Act, as
applicable.
(b) On the Closing Date, the Lead Underwriters shall have received:
(i) One or more opinions, dated the Closing Date and addressed to
the Underwriters, of counsel to the Depositor, in form and substance
satisfactory to such Lead Underwriters, substantially to the effect that:
(A) The Depositor is a corporation in good standing under
the laws of the State of Delaware.
(B) The Depositor has corporate power and authority to enter
into and perform its obligations under this Agreement and the Pooling
and Servicing Agreement.
16
(C) Each of this Agreement and the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the
Depositor. Upon due authorization, execution and delivery by the other
parties thereto, the Pooling and Servicing Agreement will constitute a
valid, legal and binding agreement of the Depositor, enforceable
against the Depositor in accordance with its terms, except as
enforceability may be limited by (1) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors generally,
(2) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law and (3) such other exceptions as are
reasonably acceptable to the Lead Underwriters.
(D) The Certificates, when duly and validly executed,
authenticated and delivered in accordance with the Pooling and
Servicing Agreement and paid for in accordance with this Agreement,
will be entitled to the benefits of the Pooling and Servicing
Agreement.
(E) The Registration Statement was declared effective under
the 1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and not
withdrawn, and no proceedings for that purpose have been initiated or
threatened by the Commission.
(F) At the time it was declared effective under the 1933
Act, the Registration Statement (other than any financial, numerical,
accounting or statistical information included or incorporated by
reference therein, as to which no opinion need be rendered) complied
as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(G) To such counsel's knowledge and information, there are
no material contracts, indentures, or other documents of the Depositor
required to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto or that may be filed subsequently to the Closing Date pursuant
to a Current Report on Form 8-K.
(H) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended, and
the issuance and sale of the Certificates in the manner contemplated
by the Prospectus will not cause the Trust Fund to be subject to
registration or regulation as an "investment company" under the
Investment Company Act of 1940, as amended.
(I) No consent, approval, authorization, or order of any
State of New York or federal court or governmental agency or body is
required for the consummation by the Depositor of the transactions
contemplated herein, except (1) such as have been obtained, (2) such
as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and sale of the
17
Certificates by the Underwriters, as to which no opinion need be
expressed and (3) any recordation of the assignments of the Mortgage
Loans to the Trustee pursuant to the Pooling and Servicing Agreement
that has not yet been completed.
(J) Neither the sale of the Certificates to the Underwriters
pursuant to this Agreement, nor the consummation by the Depositor of
any other of the transactions contemplated by, or the fulfillment by
the Depositor of the terms of, this Agreement or the Pooling and
Servicing Agreement, will conflict with or result in a breach or
violation of any term or provision of, or constitute a default (or an
event which with the passing of time or notification or both, would
constitute a default) under, (1) the certificate of incorporation or
by-laws of the Depositor or, (2) to the knowledge of such counsel, any
material indenture, agreement or instrument to which the Depositor is
a party or by which it is bound or, (3) any State of New York or
federal statute or regulation applicable to the Depositor or, (4) to
the knowledge of such counsel, any order of any New York or federal
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Depositor except, in the case of either
(2) or (4), for any conflict, breach, violation or default that, in
the judgment of such counsel, is not reasonably likely to materially
and adversely affect the Depositor's ability to perform its
obligations under this Agreement or the Pooling and Servicing
Agreement.
(ii) An opinion, dated the Closing Date and addressed to the
Underwriters, of counsel to the Underwriters, reasonably acceptable to the
Underwriters.
(iii) In giving their opinions required by the foregoing
subsections (i) and (ii) of this Section, counsel to the Depositor and the
Underwriters, respectively, shall in each case additionally state that
nothing has come to such counsel's attention that has caused it to believe
that (i), in the case of counsel to the Depositor, the Registration
Statement, the Prospectus or the Time of Sale Information, and (ii) in the
case of counsel to the Underwriters, the Prospectus or the Time of Sale
Information (in each case other than any financial statements and
supporting schedules and numerical, statistical and/or accounting
information included therein, as to which no statement need be made), in
the case of the Registration Statement, as of the time it was declared
effective under the 1933 Act, in the case of the Prospectus, as of the date
thereof or as of the Closing Date, and as of the Time of Sale, in the case
of the Time of Sale Information, contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Such statement shall be based upon conferences and
telephone conversations with representatives of the parties hereto, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer and the
Trustee and such statement may be qualified that, with limited exception,
such counsel will not have reviewed any loan documents. Such counsel may
exclude from such opinion those sections of the Prospectus and Time of Sale
Information that constitute Mortgage Loan Seller Information and
Trustee/Servicer Information.
18
Such opinion(s) may express its (their) reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Such opinion(s) may be qualified as an opinion only
on the General Corporation Law of the State of Delaware, the laws of the State
of New York and the federal law of the United States.
(c) On the Closing Date, the Lead Underwriters shall have received a
favorable opinion, dated the Closing Date and addressed to the Underwriters, of
special tax and ERISA counsel to the Depositor (i) regarding the qualification
of each of REMIC I and REMIC II as a real estate mortgage investment conduit
within the meaning of Sections 860A through 860G of the Internal Revenue Code of
1986 and (ii) generally to the effect that the statements in the Base Prospectus
and the Prospectus Supplement under the headings "Federal Income Tax
Consequences" and "ERISA Considerations", to the extent that they constitute
matters of federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment in the
Certificates to all investors, are correct in all material respects with respect
to those consequences or matters that are discussed therein. Such opinion(s) may
express its (their) reliance as to factual matters on the representations and
warranties made by, and on certificates or other documents furnished by officers
and/or authorized representatives of, the parties to this Agreement and the
Pooling and Servicing Agreement and on certificates furnished by public
officials. Such opinion(s) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto. Such opinion(s) may be qualified as an opinion only on the federal tax
and ERISA law of the United States.
(d) The Depositor shall have delivered to the Lead Underwriters a
certificate, dated the Closing Date, and signed by an authorized officer or
signatory of the Depositor, to the effect that the signer of such certificate
has examined, or has relied upon an examination conducted by appropriate persons
authorized by him or her of, this Agreement, the Prospectus, the Pooling and
Servicing Agreement and various other closing documents, and that, to his or her
knowledge after reasonable investigation:
(i) the representations and warranties of the Depositor in this
Agreement and the Pooling and Servicing Agreement are true and correct in
all material respects;
(ii) the Depositor has, in all material respects, complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(iii) since the date of this Agreement, there has been no
material adverse change in the financial condition of the Depositor; and
19
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(e) Each Mortgage Loan Seller shall have delivered to the Lead
Underwriters a certificate, dated the Closing Date, and signed by an authorized
officer or signatory of the Mortgage Loan Seller to the effect that:
(i) the representations and warranties of the Mortgage Loan
Seller in the respective Mortgage Loan Purchase Agreement are true and
correct in all material respects except as indicated on Schedule A thereto;
(ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied under the respective Mortgage Loan
Purchase Agreement at or prior to the Closing Date; and
(iii) since the date of this Agreement, there has been no
material adverse change in the financial condition of the Mortgage Loan
Seller.
(f) The Depositor and the Lead Underwriters shall have received from
Ernst & Young LLP, certified public accountants, a letter dated the Closing Date
and addressed to the Underwriters, in form and substance satisfactory to the
Lead Underwriters, stating in effect that:
(i) they have performed certain specified procedures as a result
of which they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus Supplement
agrees with the data sheet or computer tape prepared by or on behalf of
each Mortgage Loan Seller, unless otherwise noted in such letter; and
(ii) they have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in the Mortgage Files and in such other sources as
shall be specified by them, and found such data and information to be in
agreement, unless otherwise noted in such letter.
(g) The Depositor shall have received the accountant's letters
specified in Section 5(i).
(h) The Lead Underwriters shall have received, with respect to each of
the Master Servicer, the Special Servicer and the Trustee, a favorable opinion
of counsel, dated the Closing Date and addressed to the Underwriters, addressing
the valid existence of such party under the laws of the jurisdiction of its
organization, the due authorization, execution and delivery of the Pooling and
Servicing Agreement by such party and, subject to the same limitations as set
forth in Section 6(b)(i)(C), the enforceability of the Pooling and Servicing
Agreement against such party and such other opinions as shall be reasonably
requested by the Lead Underwriters. Such opinion may express its reliance as to
factual matters on representations and warranties made by, and on certificates
or other documents furnished by
20
officers and/or authorized representatives of, parties to the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered.
(i) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Depositor or a Mortgage Loan Seller (including any
of the Mortgage Loans) which such Underwriter concludes, in the reasonable
judgment of such Underwriter, materially impairs the investment quality of the
Certificates so as to make it impractical or inadvisable to proceed with the
public offering or the delivery of the Certificates as contemplated by the Time
of Sale Information (excluding the Corrective Information) and the Prospectus.
(j) The Certificates shall have been assigned ratings by the Rating
Agencies (as defined in the Pooling and Servicing Agreement) no less than those
set forth on Schedule I and such ratings shall not have been withdrawn,
suspended or qualified.
(k) The Lead Underwriters shall have received copies of any opinions
of counsel to the Depositor supplied to the Rating Agencies relating to certain
matters with respect to the Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriters or accompanied by reliance
letters addressed to the Underwriters.
(l) The Depositor shall have furnished to the Lead Underwriters such
further opinions, information, certificates and documents as the Lead
Underwriters may reasonably have requested, and all proceedings in connection
with the transactions contemplated by this Agreement and all documents incident
hereto shall be in all material respects reasonably satisfactory in form and
substance to the Lead Underwriters and its counsel.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter
(severally and not jointly), its directors and officers and each person, if any,
who controls such Underwriter within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, from and against any and all expenses,
losses, claims, damages and other liabilities (including without limitation the
reasonable costs of investigation and legal defense) (the "Liabilities") caused
by (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, not misleading, or any untrue statement or alleged
untrue statement of any material fact contained in the Prospectus or any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading or (ii) any untrue statement or alleged untrue statement of
a material fact contained in the Time of Sale Information or any Issuer Free
Writing Prospectus or any Issuer Information contained in (and delivered by the
Depositor to the Underwriters specifically for inclusion 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,
21
which was not corrected by Corrective Information subsequently supplied by the
Depositor or any Mortgage Loan Seller to any Underwriter within a reasonable
period of time prior to the Time of Sale, or (iii) any breach of the
representation and warranty in Section 1(a)(xviii); provided that, in the case
of clauses (i) and (ii) above, insofar as the Liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission with
respect to any information in the Prospectus as to which any Underwriter has
agreed to indemnify the Depositor pursuant to Section 7(b), the Depositor shall
have no obligation to so indemnify and hold harmless; and provided, further,
that the Depositor shall have no obligation to so indemnify and hold harmless to
the extent that the Liabilities arise out of or are based upon an untrue
statement or omission or an alleged untrue statement or omission made in, or in
reliance upon and conformity with, or otherwise with respect to the Mortgage
Loan Seller Information (including without limitation untrue statements or
alleged untrue statements or omissions or alleged omissions in the portions of
the Prospectus Supplement and any free writing prospectus under the heading
"Yield and Maturity Considerations" that arise out of or are based upon untrue
statements or alleged untrue statements or omissions or alleged omissions in the
Mortgage Loan Seller Information or the Trustee/Servicer Information).
(b) Each Underwriter shall, severally and not jointly, indemnify and
hold harmless the Depositor, its directors and its officers who signed the
Registration Statement and each person, if any, who controls the Depositor
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all Liabilities as incurred, but only with respect to
Liabilities caused by any (i) untrue statements or alleged untrue statements of
a material fact, or omissions or alleged omissions to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in the Underwriter Information and
(ii) untrue statements or alleged untrue statements of a material fact in any
Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter
or omission or alleged omission to state in such Underwriter Free Writing
Prospectus a material fact necessary in order to make the statements therein
(when read in conjunction with the Time of Sale Information), in the light of
the circumstances under which they were made, not misleading; provided, that no
Underwriter shall be obligated to so indemnify and hold harmless (A) to the
extent such Liabilities are caused by a misstatement or omission resulting from
an error or omission in the Issuer Information which was not corrected by
Corrective Information subsequently supplied by the Depositor or any Mortgage
Loan Seller to any Underwriter within a reasonable period of time prior to the
Time of Sale or (B) in the case of clause (ii) of this sentence, with respect to
information that is also contained in the Time of Sale Information.
(c) Each indemnified party shall give notice in writing as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than under subsection (a) or (b) of
this Section 7. Upon request of the indemnified party, the indemnifying party
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding as incurred. If any action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party may participate at its own expense in the
defense
22
of any such action. The indemnifying party may elect to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from the indemnified party. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have agreed to
the retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to designate within a reasonable
period of time counsel reasonably satisfactory to the indemnified party (in
which case the fees and expenses shall be paid as incurred by the indemnifying
party). In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. An indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent. However, if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel for which the indemnifying
party is obligated under this subsection, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. If an indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of the indemnified party or, if such settlement
provides for an unconditional release of the indemnified party, without any
admission of fault, culpability or failure to act or on behalf of the
indemnified party, in connection with all matters relating to the proceeding
that have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
(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
23
such Underwriter on the other, in connection with the offering of the
Certificates underwritten by such Underwriter shall be deemed to be in the same
respective proportions that the total proceeds from the sale of the Certificates
underwritten by such Underwriter (before deducting expenses) received by the
Depositor and the amount by which (i) the total price received by such
Underwriter with respect to the initial resale to investors in the Certificates
acquired by such Underwriter exceeds (ii) the total underwriting discounts and
commissions received by such Underwriter (or, if no such Underwriter discounts
and commissions are payable hereunder, the amount of the other fees payable to
such Underwriter in connection with the offering of the Certificates), bear to
the aggregate offering price of the Certificates. The relative fault of the
Depositor on the one hand and of such Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor or by such
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The parties hereto agree that it would not be just and equitable
if contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or other liabilities referred to in this
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. If any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment.
Notwithstanding the provisions of subsection (d) above or this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which (i) the total underwriting discounts and commissions and other
fees received by such Underwriter in connection with the offering of the
Certificates exceeds (ii) the amount of damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) 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.
24
(h) Each Underwriter (the "Indemnifying Underwriter") will indemnify
and hold harmless the other Underwriters and each person, if any, who controls
such Underwriter within the meaning of either the 1933 Act or the 1934 Act (the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages or liabilities, joint or several, to which the Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission (when read in conjunction with
the Time of Sale Information) to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they were
made, not misleading at the Time of Sale, contained in any Underwriter Free
Writing Prospectus prepared by, or on behalf of, or used or referred to by, such
Indemnifying Underwriter or (ii) the failure of such Indemnifying Underwriter,
or any member of its selling group, to comply with any provision of Sections
4(b) or 9, and agrees to reimburse such Non-Indemnifying Underwriter, as
incurred for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action, except to the extent such losses, claims, damages or
liabilities are caused by a misstatement or omission resulting from an error or
omission in the Issuer Information which was not corrected by Corrective
Information subsequently supplied by the Depositor or any Mortgage Loan Seller
to any Underwriter within a reasonable period of time prior to the Time of Sale.
This agreement will be in addition to any liability that any Underwriter may
otherwise have.
8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
in respect of such Underwriter, and shall survive delivery of the Certificates
to the Underwriters.
9. Defaulting Underwriter.
If, on the Closing Date, any of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date, and
the aggregate principal amount of Certificates which such defaulting Underwriter
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of Certificates to be purchased on such date, the
other Underwriters shall be obligated to purchase the Certificates which such
defaulting Underwriter agreed but failed or refused to purchase on such date;
provided that no Underwriter shall be obligated under this Section 9 to purchase
Certificates of a Class that it is not otherwise obligated to purchase under
this Agreement. If, on the Closing Date, one of the Underwriters shall fail or
refuse to purchase Certificates that it has agreed to purchase hereunder on such
date and the aggregate principal amount of Certificates with respect to which
such default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date and arrangements satisfactory to the
non-defaulting Underwriters and the Depositor for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-
25
defaulting Underwriter or of the Depositor. In any such case either such
non-defaulting Underwriters or the Depositor shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Termination of Agreement.
(a) The Lead Underwriters may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to the Closing
Date if the sale of the Certificates provided for herein is not consummated
because of any failure or refusal on the part of the Depositor to comply in all
material respects with the terms, or to fulfill in all material respects any of
the conditions of, this Agreement, or if for any reason the Depositor shall be
unable to perform in all material respects its obligations under this Agreement.
(b) The Lead Underwriters may terminate its obligations under this
Agreement in the absolute discretion of the Lead Underwriters, by notice given
to the Depositor, if (A) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by any of the New York Stock Exchange or the
over-the-counter market; (ii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities;
(iii) there shall have occurred a material disruption in securities settlement
or clearance services in the United States; or (iv) there shall have occurred
any outbreak or escalation of hostilities or any change or prospective change in
financial markets or any calamity or crisis, either within or outside the United
States, that in the judgment of the Underwriter is material and adverse and
makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Certificates on the terms and in the manner contemplated by this
Agreement and the Prospectus.
(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; (i) to the
Underwriters shall be given to the Representative at ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 4 World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Office of the General Counsel, 4 World
Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax:
▇▇▇-▇▇▇-▇▇▇▇)), except that notices to Countrywide Securities Corporation shall
be given to Countrywide Securities Corporation, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇-▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(ii) to the Depositor shall be given to it at ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors,
Inc., 4 World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
26
10080 (fax: ▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or Director, CMBS
Securitization (with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Office of the General Counsel,
4 World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(fax: ▇▇▇-▇▇▇-▇▇▇▇)); and (iii) to any such party shall be given to such other
address as may hereafter be furnished by such party to the others in writing.
12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriters and the Depositor and
their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their respective successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
13. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
14. Entire Agreement.
This Agreement, together with any contemporaneous written agreements and
any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Certificates, represents the entire agreement
between the Depositor, on the one hand, and the Underwriters, on the other, with
respect to the preparation of the Prospectus, and the conduct of the offering,
and the purchase and sale of the Certificates.
15. Miscellaneous.
Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such amendment, waiver, discharge or termination is sought. This
Agreement may be signed in any number of duplicate originals, each of which
shall be deemed an original, which taken together shall constitute one and the
same instrument.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Depositor a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Depositor in accordance with its terms.
16. Authority of the Representative.
Any action by the Underwriters hereunder may be taken by ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated on behalf of the Underwriters, and any such
action taken by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated shall be
binding upon the Underwriters.
28
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Executive Vice President
Chief Officer in Charge of
Commercial Mortgage
Securitization
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
For itself and on behalf of the
several Underwriters listed on
Schedule I.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Authorized Signatory
29
ANNEX A
The First Page of the Depositor's Free Writing Prospectus dated March 14, 2006
30
ANNEX B
The First Page of the Depositor's Term Sheet dated March 13, 2006
31
ANNEX C
The First Page of the Depositor's Term Sheet dated March 22, 2006
32
ANNEX D
Pricing Information Annex
33
SCHEDULE I
MLCFC Commercial Mortgage Pass-Through Certificates, Series 2006-1, Class A-1,
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-3FL, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇, Class A-1A, Class AM,
Class AJ, Class B, Class C and Class D.
Amount of Class of
Certificates Certificates
to be to be
Underwriters Purchased Purchased
-------------------------------------------------- ------------ ------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 37,176,217 A-1
Countrywide Securities Corporation $ 27,823,783 A-1
EHY Securities (USA), LLC $ ▇ ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ ▇ ▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 0 A-1
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-1
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $220,854,139 A-2
Countrywide Securities Corporation $116,645,862 A-2
EHY Securities (USA), LLC $ ▇ ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ ▇ ▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 0 A-2
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-2
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 37,833,950 A-3
Countrywide Securities Corporation $ 28,316,050 A-3
EHY Securities (USA), LLC $ ▇ ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ ▇ ▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 0 A-3
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-3
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 60,139,680 A-3FL
Countrywide Securities Corporation $ 45,010,321 A-3FL
EHY Securities (USA), LLC $ 0 A-3FL
Banc of America Securities LLC $ 0 A-3FL
▇▇▇▇▇▇▇, Sachs & Co. $ 0 A-3FL
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-3FL
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 42,895,634 A-3B
Countrywide Securities Corporation $ 32,104,366 A-3B
EHY Securities (USA), LLC $ ▇ ▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ ▇ ▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 0 A-3B
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-3B
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 69,204,957 A-SB
Countrywide Securities Corporation $ 51,795,043 A-SB
EHY Securities (USA), LLC $ ▇ ▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ 0 A-▇▇
▇▇▇▇▇▇▇, Sachs & Co. $ 0 A-▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $279,955,785 A-4
Countrywide Securities Corporation $209,527,216 A-4
EHY Securities (USA), LLC $ ▇ ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ ▇ ▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 0 A-4
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-4
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $137,266,030 A-1A
Countrywide Securities Corporation $102,733,970 A-1A
EHY Securities (USA), LLC $ ▇ ▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ ▇ ▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 0 A-1A
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 A-1A
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $122,500,209 AM
Countrywide Securities Corporation $ 91,682,791 AM
EHY Securities (USA), LLC $ 0 AM
Banc of America Securities LLC $ 0 AM
▇▇▇▇▇▇▇, Sachs & Co. $ 0 AM
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 AM
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 46,931,256 AJ
Countrywide Securities Corporation $ 35,124,744 AJ
EHY Securities (USA), LLC $ 0 AJ
Banc of America Securities LLC $ 0 ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 0 ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 ▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 29,093,535 B
Countrywide Securities Corporation $ 21,774,465 B
EHY Securities (USA), LLC $ ▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC $ 0 B
▇▇▇▇▇▇▇, Sachs & Co. $ 0 B
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 B
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 12,250,421 C
Countrywide Securities Corporation $ 9,168,579 C
EHY Securities (USA), LLC $ 0 C
Banc of America Securities LLC $ 0 C
▇▇▇▇▇▇▇, Sachs & Co. $ 0 C
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 C
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 16,843,686 D
Countrywide Securities Corporation $ 12,606,314 D
EHY Securities (USA), LLC $ 0 D
Banc of America Securities LLC $ 0 D
Goldman, Sachs & Co. $ 0 D
Morgan ▇▇▇▇▇▇▇ & Co. Incorporated $ 0 D
SCHEDULE I (CONTINUED)
Class Initial Aggregate Approximate Initial Purchase Rating(3)
Designation Principal Amount of Class(1) Pass-Through Rate Price(2) S&P/Fitch/Dominion
----------- ---------------------------- ------------------- --------- ------------------
A-1 $ 65,000,000.00 5.414% 100.49944% AAA/AAA/AAA
A-2 $337,500,000.00 5.439% 100.54889% ▇▇▇/▇▇▇/▇▇▇
▇-▇ $ 66,150,000.00 5.671% 100.54847% AAA/AAA/AAA
A-3FL $105,150,000.00 LIBOR + 0.200% 100.00000% ▇▇▇/▇▇▇/▇▇▇
▇-▇▇ $ 75,000,000.00 5.670% 100.54806% AAA/AAA/AAA
A-SB $121,000,000.00 5.645% 100.54817% AAA/AAA/AAA
A-4 $489,483,000.00 5.621% 100.54542% AAA/AAA/AAA
A-1A $240,000,000.00 5.620% 100.54900% AAA/AAA/AAA
AM $214,183,000.00 5.671% 100.54892% AAA/AAA/AAA
AJ $ 82,056,000.00 5.720% 100.54472% AAA/AAA/AAA
B $ 50,868,000.00 5.722% 100.26219% AA/AA/AA
C $ 21,419,000.00 5.722% 100.11378% AA(Low)/AA-/AA-
D $ 29,450,000.00 5.722% 99.52286% A/A/A
----------
(1) Subject to a variance of plus or minus 5.0%
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates shown is net accrued
interest. The purchase price to be paid will include accrued interest at
the initial Pass-Through Rate therefor on the aggregate stated or notional
amount, plus, if applicable, accrued interest on the actual principal
amount or notional amount thereof at the applicable Pass-Through Rate from
March 1, 2006 to but not including the Closing Date. The purchase price
does not reflect any underwriting discount.
(3) By each of Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies ("S&P"), Fitch, Inc. ("Fitch") and Dominion Bond
Rating Service, Inc. ("Dominion").