Exhibit 1.1
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS, INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES __________
UNDERWRITING AGREEMENT
----------------------
_____________, 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"), the
Commercial Mortgage Pass-Through Certificates identified in Schedule I hereto
(the "Certificates") pursuant to this Underwriting Agreement, dated
______________, 2006 (this "Agreement"), between the Depositor and the
Underwriters. The Certificates will evidence beneficial ownership interests in
a trust fund (the "Trust Fund") to be formed by the Depositor and consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily and
commercial mortgage loans (the "Mortgage Loans").
Certain of the Mortgage Loans (the "________ Mortgage Loans") will be
acquired by the Depositor from [Loan Seller] ("________") pursuant to the
mortgage loan purchase agreement, dated _____________, 2006 (the "________
Mortgage Loan Purchase Agreement") between the Depositor and ________. Certain
of the Mortgage Loans (the "________ Mortgage Loans") will be acquired by the
Depositor from _________________ ("________") pursuant to the mortgage loan
purchase agreement, dated ___________, 2006 (the "________ Mortgage Loan
Purchase Agreement") between the Depositor and________. Certain of the
Mortgage Loans (the "________ Mortgage Loans") will be acquired by the
Depositor from [Loan Seller] ("________") pursuant to the mortgage loan
purchase agreement, dated _____________, 2006 (the "________ Mortgage Loan
Purchase Agreement"), between the Depositor and ________. ________, ________
and ________ collectively constitute the "Mortgage Loan Sellers"; and the
________ ___ Mortgage Loan Purchase Agreement and the ________ 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 _____________, 2006 (the
"Pooling and Servicing Agreement"), between the Depositor, as depositor,
________________, as master servicer,
_____________________, as special servicer, ______________________, as trustee
and _____________________, as paying agent and certificate registrar.
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-_________) on Form S-3
for the registration of the Certificates under the Securities Act of 1933, as
amended (the "1933 Act"), which registration statement has become effective.
The Depositor proposes to file with the Commission pursuant to Rule 424(b)
under the 1933 Act a supplement to the form of prospectus included in such
registration statement relating to the Certificates and the plan of
distribution thereof. Such registration statement, including the exhibits
thereto, and information that is contained in the Prospectus (as defined
below) and is deemed to be part of and included in such registration statement
as it may have been amended or supplemented at the date of the Prospectus, is
hereinafter referred to as the "Registration Statement"; the prospectus first
required to be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule 424(b) under the 1933 Act, is hereinafter referred to as the
"Base Prospectus"; such form of supplement to the Base Prospectus relating to
the Certificates, in the form first required to be filed to satisfy the
condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the 1933
Act (including the Base Prospectus as so supplemented) is hereinafter referred
to as the "Prospectus Supplement"; and the Base Prospectus and the Prospectus
Supplement, together, are hereinafter referred to as the "Prospectus".
At or prior to the time when sales to purchasers of the Certificates
were first made, which was approximately 1:30 p.m. on ___________, 2006 (the
"Time of Sale"), the Depositor had prepared the following information
(collectively, the "Time of Sale Information"): the Depositor's Free Writing
Prospectus dated __________, 2006 (the cover page of which is attached hereto
as Annex A) to accompany the Depositor's Prospectus dated __________, 2005,
and the Depositor's Prospectus dated __________, 2005, the Term Sheet dated
___________, 2006, relating to the Certificates, each "free-writing
prospectus" (as defined pursuant to Rule 405 under the 1933 Act) (a "Free
Writing Prospectus") the first page of each of which is attached as Annex B
hereto and the pricing information annex attached hereto as Annex C. If,
subsequent to the date of this Agreement, the Depositor and the Underwriters
determine that such information included an untrue statement of material fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and terminate their old purchase contracts and enter into new
purchase contracts with purchasers of the Certificates, then "Time of Sale
Information" will refer to the information conveyed to purchasers at the time
of entry into the first such new purchase contract, including any information
that corrects such material misstatements or omissions ("Corrective
Information") and "Time of Sale" will refer to the time and date on which such
new purchase contracts were entered into.
1. Representations and Warranties.
(a) The Depositor represents and warrants to the
Underwriters as follows:
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(i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending or, to the Depositor's
knowledge, threatened by the Commission; the Registration Statement as of its
effective date or deemed effective date pursuant to Rule 430B under the 1933
Act (the "Effective Date"), and the Prospectus, as of the date of the
Prospectus Supplement, complied in all material respects with the applicable
requirements of the 1933 Act and the rules and regulations thereunder (the
"1933 Act Regulations"); and the information in the Registration Statement, as
of the Effective Date, did not contain any untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the information in
the Prospectus, as of the date of the Prospectus Supplement, did not, and as
of the Closing Date (as hereinafter defined) will not, contain an untrue
statement of a material fact and did not and will not omit to state a material
fact necessary in order to make the information therein, in the light of the
circumstances under which they were made, not misleading, provided, however,
that the Depositor makes no representations, warranties or agreements as to
(A) the information contained in the Prospectus or any revision or amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Depositor by any Underwriter on behalf
of itself or the other Underwriters specifically for use in connection with
the preparation of the Prospectus or any revision or amendment thereof or
supplement thereto (the "Underwriter Information"), or (B) any information
contained in or omitted from the portions of the Prospectus Supplement for
which the Mortgage Loan Sellers are obligated to indemnify the Underwriters
under the Indemnification Agreements, each dated as of _________, 2006,
between the respective Mortgage Loan Seller, the Depositor and the
Underwriters (the "Mortgage Loan Seller Information") and provided, further,
that the Depositor makes no representations or warranties regarding untrue
statements or omissions in the portions of the Prospectus Supplement under the
heading "Yield, Prepayment and Maturity Considerations" that arise out of or
are based upon untrue statements or omissions in the Mortgage Loan Seller
Information. The Underwriter Information shall consist of the second, fourth
and ninth paragraphs of the section of the Prospectus Supplement entitled
"Plan of Distribution" and the first two sentences of the last paragraph on
the cover page of the Prospectus Supplement.
(ii) The Time of Sale Information, at the Time of Sale, did
not, and at the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Depositor makes no representation and
warranty with respect to (A) any statements or omissions made in reliance upon
and in conformity with the Underwriter Information or (B) any Mortgage Loan
Seller Information contained in or omitted from such Time of Sale Information.
The parties acknowledge that none of the Underwriters has furnished any
Underwriter Information to the Depositor expressly for use in the Time of Sale
Information.
(iii) Other than the Prospectus, the Depositor (including its
agents and representatives other than the Underwriters in their capacity as
such) has not made, used, prepared, authorized, approved or referred to and
will not make, use, prepare, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) that constitutes an
offer to sell or solicitation of an offer to buy the Certificates other than
(i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a)
of the 1933 Act or Rule
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134 under the 1933 Act, (ii) the Time of Sale Information, and (iii) each
other written communication of the Depositor or its agents and representatives
approved by the Underwriters either in writing in advance or in any other
manner mutually agreed to by the Underwriters and the Depositor (each such
communication referred to in clause (ii) and this clause (iii) constituting an
"issuer free writing prospectus", as defined in Rule 433(h) under the 1933
Act, being referred to as an "Issuer Free Writing Prospectus"). Each such
Issuer Free Writing Prospectus complied or, if used after the date hereof,
will comply, in all material respects with the 1933 Act and the rules and
regulations promulgated thereunder, has been filed or will be filed in
accordance with Section 4 (to the extent required thereby) and did not at the
Time of Sale, and at the Closing Date will not, contain any untrue statements
of a material fact or (when read in conjunction with the other Time of Sale
Information) omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Depositor makes no representation and
warranty with respect to (i) any statements or omissions made in reliance upon
and in conformity with the Underwriter Information or (ii) any Mortgage Loan
Seller Information contained in or omitted from any Issuer Free Writing
Prospectus. The parties acknowledge that none of the Underwriters has
furnished any Underwriter Information to the Depositor expressly for use in
any Issuer Free Writing Prospectus.
(iv) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to enter into and perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of this Agreement
and the Pooling and Servicing Agreement by the Depositor and the consummation
of the transactions contemplated herein and therein by the Depositor and
compliance by the Depositor with its obligations hereunder and thereunder have
been duly authorized by all necessary corporate action and will not (A)
contravene any provision of the certificate of incorporation or by-laws of the
Depositor or applicable law or (B) conflict with or constitute a breach of or
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Depositor pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
to which the Depositor is a party or by which it may be bound or to which any
of the property or assets of the Depositor is subject, which conflict, breach,
default, lien, charge or encumbrance is reasonably likely to materially and
adversely affect the 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
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enforcement is sought in a proceeding in equity or at law. The Certificates
and the Pooling and Servicing Agreement conform in all material respects to
all statements relating thereto contained in the Prospectus.
(vii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Certificates hereunder, except such as have been, or
as of the Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the
purchase and offer and sale of the Certificates by the Underwriters and any
recordation of the respective assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet been
completed.
(viii) This Agreement has been, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed and
delivered by the Depositor. This Agreement constitutes, and as of the Closing
Date the Pooling and Servicing Agreement will constitute, a legal, valid and
binding agreement enforceable against the Depositor in accordance with its
terms, except as such enforceability may be limited by the effect of (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of the rights of creditors generally,
(B) general principles of equity, whether enforcement is sought in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
that purport or are construed to provide indemnification from securities law
liabilities.
(ix) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Depositor (A) will convey to the Trustee, or
cause to be conveyed to the Trustee, all of the Depositor's right, title and
interest in and to the Mortgage Loans, 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
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this Agreement as a sale of the interest in the Mortgage Loans evidenced by
the Certificates. The consideration received by the Depositor upon the sale of
the Certificates to the Underwriters will constitute at least reasonably
equivalent value and fair consideration for the Certificates. The Depositor
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Certificates to the Underwriters. The Depositor
is not selling the Certificates to the Underwriters with any intent to hinder,
delay or defraud any of the creditors of the Depositor.
(xii) The Depositor has not relied on the Underwriters for any
tax, regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Depositor
acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arm's length
between sophisticated parties represented by counsel; (ii) no fiduciary,
advisory or agency relationship between the Depositor and the Underwriters has
been created as a result of any of the transactions contemplated by this
Agreement, irrespective of whether any Underwriter has advised or is advising
the Depositor on other matters; (iii) the Underwriters' obligations to the
Depositor in respect of the offering, and the purchase and sale, of the
Certificates are set forth in this Agreement in their entirety; and (iv) it
has obtained such legal, tax, accounting and other advice as it deems
appropriate with respect to this Agreement and the transactions contemplated
hereby and any other activities undertaken in connection therewith, and it is
not relying on the Underwriters with respect to any such matters.
(xiii) The Trust Fund (other than those portions specified in
the Pooling and Servicing Agreement) will qualify as three separate real
estate mortgage investment conduits (each, a "REMIC") for federal income tax
purposes pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code"); the REMIC III 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.
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(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. There
will be added to the purchase price of the Certificates an amount equal to
interest accrued thereon pursuant to the terms thereof from _________, 2006 to
but excluding the Closing Date.
3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 a.m. New York City time on _________,
2006, which date and time may be postponed by agreement between the
Underwriters and the Depositor (such time and date of payment and delivery,
the "Closing Date"). Payment shall be made to the Depositor by the
Underwriters of the purchase prices of the Certificates as set forth in
Schedule I in immediately available Federal funds wired to such bank as may be
designated by the Depositor, against delivery of the Certificates. Delivery of
the Certificates will be made in book-entry form through the facilities of The
Depository Trust Company ("DTC"). Each class of Certificates will be
represented by one or more definitive global Certificates to be deposited by
or on behalf of the Depositor with DTC or the Trustee. The Certificates will
be made available for examination by the Underwriters not later than 10:00
a.m. New York City time on the last business day prior to the Closing Date.
The closing of the transactions contemplated hereby shall be made at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
or at such other place as shall be agreed upon by the Underwriters and the
Depositor.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon Policy Statement 105, has not and will
not file an offering statement pursuant to Section 352-e of the General
Business Law of the State of New York with respect to the Certificates. Each
Underwriter severally and not jointly therefore agrees that sales of the
Certificates made by such Underwriter in and from the State of New York will
be made only to institutional investors within the meaning of Policy Statement
105.
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(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free
Writing Prospectuses (as defined below), or portions thereof, subject to the
following conditions (to which such conditions each Underwriter agrees
(provided that no Underwriter shall be responsible for any breach of the
following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication to
any person in connection with the initial offering of the Certificates,
unless such written communication (1) is made in reliance on Rule 134
under the 1933 Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act, or (3) constitutes Time
of Sale Information or a Free Writing Prospectus that does not
constitute Time of Sale Information. The Underwriters shall not convey
or deliver in connection with the initial offering of the Certificates
any "computational materials" or "ABS term sheets" in reliance on the
"▇▇▇▇▇▇/PSA" no-action letters or any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB
under the 1933 Act ("ABS Informational and Computational Material"), in
reliance upon Rules 167 and 426 under the 1933 Act.
(ii) Each Underwriter shall deliver to the Depositor, no
later than two business days prior to the date of first use thereof or
such later date as may be agreed to by the Depositor, (a) any Free
Writing Prospectus that was prepared by or on behalf of such
Underwriter (an "Underwriter Free Writing Prospectus") and that
contains any "issuer information," as defined in Rule 433(h) under the
1933 Act and footnote 271 of the Commission's Securities Offering
Reform Release No. 33-8591 ("Issuer Information") (which the parties
hereto agree includes, without limitation, Mortgage Loan Seller
Information), and (b) any Free Writing Prospectus or portion thereof
prepared by or on behalf of such Underwriter that contains only a
description of the final terms of the Certificates. Notwithstanding the
foregoing, any Free Writing Prospectus that contains only ABS
Informational and Computational Materials may be delivered by an
Underwriter to the Depositor not later than the later of (A) two
business days prior to the due date for filing of the Prospectus
pursuant to Rule 424(b) under the 1933 Act or such later date as may be
agreed to by the Depositor or (B) the date of first use of such Free
Writing Prospectus.
(iii) Each Underwriter represents and warrants to the
Depositor that the Free Writing Prospectuses to be furnished to the
Depositor by such Underwriter pursuant to Section 4(b)(ii) will
constitute all Free Writing Prospectuses of the type described therein
that were furnished to prospective investors by such Underwriter in
connection with its offer and sale of the Certificates.
(iv) Each Underwriter represents and warrants to the
Depositor that each Free Writing Prospectus required to be provided by
it to the Depositor pursuant to Section 4(b)(ii) did not, as of the
Time of Sale, and will not as of the Closing Date, include any untrue
statement of a material fact or omit any material fact necessary to
make the statements contained therein (when read in conjunction with
the Time of Sale Information), in light of the circumstances under
which they were made, not misleading;
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provided however, that such Underwriter makes no representation to
the extent such misstatements or omissions were the result of any
inaccurate Issuer Information, which information was not corrected by
Corrective Information subsequently supplied by the Depositor or any
Mortgage Loan Seller to such Underwriter within a reasonable period
of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission
the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof
delivered by any Underwriter to the Depositor pursuant to
Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which the
Depositor or any person acting on its behalf provided,
authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the
Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or
otherwise disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be
required to file (1) Issuer Information contained in any
Underwriter Free Writing Prospectus or Free Writing Prospectus
of any other offering participant other than the Depositor, if
such information is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with the
Commission that relates to the offering of the Certificates, or
(2) any Free Writing Prospectus or portion thereof that
contains a description of the Certificates or the offering of
the Certificates which does not reflect the final terms
thereof.
The Depositor is required to file such Free Writing
Prospectuses with the Commission in electronic format and the
Underwriters shall use reasonable efforts to provide to the
Depositor such Free Writing Prospectuses, or portions thereof,
in either Microsoft Word(R) or Microsoft Excel(R) format and
not in a PDF, except to the extent that the Depositor, in its
sole discretion, waives such requirements,
(vi) Any Free Writing Prospectus required to be filed
pursuant to Section 4(b)(v) by the Depositor shall be filed with the
Commission not later than the date of first use of the Free Writing
Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final terms of the Certificates shall be filed by the Depositor
with the Commission within two days of the later of the date
such final terms have been established for all classes of
Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Depositor with the
Commission not later than the later of the due date for filing
the final Prospectus relating to the Certificates pursuant to
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Rule 424(b) under the 1933 Act or two business days after the
first use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be
filed pursuant to Section 4(b)(v)(C) shall, if no payment has
been made or consideration has been given by or on behalf of
the Depositor for the Free Writing Prospectus or its
dissemination, be filed by the Depositor with the Commission
not later than four business days after the Depositor becomes
aware of the publication, radio or television broadcast or
other dissemination of the Free Writing Prospectus.
(vii) Each Underwriter shall file with the Commission any
Free Writing Prospectus that is used or referred to by it and
distributed by or on behalf of such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination not later
than the date of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section
4(b)(vii), each Underwriter shall file with the Commission any Free
Writing Prospectus for which such Underwriter or any person acting on
its behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated with
the Depositor or any other offering participant that is in the business
of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made
or consideration given by or on behalf of the Depositor or any other
offering participant, not later than four business days after such
Underwriter becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v)
and 4(b)(vii), neither the Depositor nor any Underwriter shall be
required to file any Free Writing Prospectus that does not contain
substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission, and no Underwriter shall be
required to file any Free Writing Prospectus to the extent that the
information contained therein is included in a prospectus or Free
Writing Prospectus previously filed that relates to the offering of the
Certificates.
(x) The Depositor and the Underwriters each agree that any
Free Writing Prospectuses prepared by it shall contain the following
legend, or substantially equivalent legend that complies with Rule 433
of the 1933 Act:
The depositor has filed a registration statement
(including a prospectus) with the SEC for the offering to
which this communication relates. Before you invest, you
should read the prospectus in that registration statement
and other documents the depositor has filed with the SEC
for more complete information about the depositor, the
issuing trust, and this offering. You may get these
documents for free by visiting ▇▇▇▇▇ on the SEC Web site
at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the depositor, any
underwriter or any dealer participating in the offering
will arrange to send you the prospectus if you request it
by calling toll-free ▇-▇▇▇-▇▇▇-▇▇▇▇.
10
(xi) The Depositor and each Underwriter agree to retain
all Free Writing Prospectuses that they have used and that are not
required to be filed pursuant to this Section 4 for a period of three
years following the initial bona fide offering of the Certificates.
(xii) (A) If the Depositor becomes aware that, as of the
Time of Sale, any Issuer Free Writing Prospectus delivered to an
investor in any Certificate contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements contained therein (when read in conjunction with
the Time of Sale Information), in light of the circumstances under
which they were made, not misleading (a "Defective Issuer Free Writing
Prospectus"), the Depositor shall notify the Underwriters of such
untrue statement or omission within one business day after discovery
and the Depositor shall, if requested by the Underwriters, prepare and
deliver to the Underwriters a Free Writing Prospectus that corrects the
material misstatement or omission in the Defective Issuer Free Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected
Issuer Free Writing Prospectus").
(B) If any Underwriter becomes aware that, as of
the Time of Sale, any Underwriter Free Writing Prospectus
delivered to an investor in any Certificates contained any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of
Sale Information), in light of the circumstances under which
they were made, not misleading (together with a Defective
Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), such Underwriter shall notify the Depositor of
such untrue statement or omission within one business day after
discovery.
(C) The Underwriters shall, if requested by the
Depositor:
(1) if the Defective Free Writing Prospectus
was an Underwriter Free Writing Prospectus, prepare a Free
Writing Prospectus that corrects the material misstatement
in or omission from the Defective Free Writing Prospectus
(together with a Corrected Issuer Free Writing Prospectus,
a "Corrected Free Writing Prospectus");
(2) deliver the Corrected Free Writing
Prospectus to each investor which received the Defective
Free Writing Prospectus prior to entering into a contract
of sale with such investor;
(3) notify such investor in a prominent
fashion that the prior contract of sale with the investor
has been terminated, and of the investor's rights as a
result of termination of such agreement;
(4) provide such investor with an opportunity
to affirmatively agree to purchase the Certificates on the
terms described in the Corrected Free Writing Prospectus;
and
11
(5) comply with any other requirements for
reformation of the original contract of sale with such
investor, as described in Section IV.A.2.c of Commission's
Securities Offering Reform Release No. 33-8591.
(D) If the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus, and the Underwriters shall in
good faith incur any costs to an investor in connection with
the reformation of the contract of sale with the investor, the
Depositor agrees to reimburse the Underwriters for such costs;
provided that, before incurring such costs, the Underwriters
first permit the Depositor access to the applicable investor
and an opportunity to attempt to mitigate such costs through
direct negotiation with such investor.
(xiii) Each Underwriter covenants with the Depositor that
after the Prospectus is available such Underwriter shall not distribute
any written information concerning the Certificates to a prospective
investor unless such information is preceded or accompanied by the
Prospectus.
(c) Each Underwriter further represents and warrants that:
(i) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
Financial Services and Markets Act 2000) received by it in connection with the
issue or sale of the certificates in circumstances in which Section 21(1) of
the Financial Services and Markets ▇▇▇ ▇▇▇▇ 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.
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
12
Free Writing Prospectus or file any such amendment or supplement or use any
such prospectus to which the Underwriters shall reasonably object.
(b) The Depositor will promptly give each Underwriter notice of
(i) any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information relating to the
Certificates, (ii) any written notification received by the Depositor of
suspension of qualification of the Certificates for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose and (iii)
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or, to the knowledge of the
Depositor, threatening any proceeding for that purpose. The Depositor will use
its best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(c) The Depositor will cause the Prospectus to be transmitted
to the Commission for filing pursuant to Rule 424(b) under the 1933 Act by
means reasonably calculated to result in filing with the Commission pursuant
to said rule. Subject to Section 4, the Depositor will cause the Issuer Free
Writing Prospectus to be transmitted for filing pursuant to Rule 433 under the
1933 Act by means reasonably calculated to result in filing with the
Commission pursuant to said rule.
(d) The Depositor will furnish to each Underwriter, from time
to time during the period when a prospectus relating to the Certificates is
required to be delivered under the 1933 Act, such number of copies of the
Prospectus and each Free Writing Prospectus (as amended or supplemented) as
such Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act")
or the respective applicable rules and regulations of the Commission
thereunder.
(e) If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the
Certificates is required to be delivered under the 1933 Act, any event shall
occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser of
Certificates, if the Depositor has actual knowledge of the event, and if the
event is not otherwise disclosed in a filing to the Registration Statement
pursuant to Section 13 or 15(d) of the 1934 Act, the Depositor will forthwith
amend or supplement the Prospectus so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and the Depositor will furnish to each Underwriter
a reasonable number of copies of such amendment or supplement.
(f) The Depositor will endeavor to arrange for the
qualification of the Certificates for sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Underwriters may reasonably designate and will maintain such qualification in
effect so long as required for the initial distribution of Certificates;
provided, however, that the Depositor shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or to
file a general consent to service of process in any jurisdiction.
13
(g) The Depositor will use the net proceeds received by it from
the sale of the Certificates in the manner specified in the Prospectus under
"Use of Proceeds".
(h) Whether or not the transactions contemplated by this
Agreement are consummated, the Depositor will pay or cause to be paid all
expenses incident to the performance of the obligations of the Depositor under
this Agreement, including, without limitation, (i) the fees, disbursements and
expenses of the Depositor's counsel and accountants in connection with the
purchase of the Mortgage Loans and the issuance and sale of the Certificates,
(ii) all fees and expenses incurred in connection with the registration and
delivery of the Certificates under the 1933 Act, and all other fees or
expenses in connection with the preparation and filing of the Registration
Statement, the Time of Sale Information, any Issuer Free Writing Prospectus,
the Prospectus and amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the
quantities specified above, (iii) all costs and expenses related to the
transfer and delivery of the Certificates to the Underwriters, including any
transfer or other taxes payable thereon, (iv) the costs of printing or
producing any "blue sky" memorandum in connection with the offer and sale of
the Certificates under state securities laws and all expenses in connection
with the qualification of the Certificates for the offer and sale under state
securities laws as provided in Section 5(f), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the "blue sky"
memorandum, (v) the cost of printing the Certificates, (vi) the upfront costs
and charges of any transfer agent, registrar or depository, (vii) the fees and
expenses of the rating agencies incurred in connection with the issuance and
sale of the Certificates and (viii) all other costs and expenses incident to
the performance of the obligations of the Depositor hereunder for which
provision is not otherwise made in this Section. Except as herein provided,
the Underwriters shall be responsible for the payment of all costs and
expenses incurred by them, including, without limitation, (i) the fees and
disbursements of counsel of the Underwriters and (ii) such additional costs
arising out of any Free Writing Prospectuses prepared by or on behalf of the
Underwriters and the filing of such materials, if required, with the
Commission.
(i) The Depositor shall obtain a letter from Deloitte & Touche
LLP, certified public accountants, satisfactory in form and substance to the
Depositor and the Underwriters, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by
the Depositor and the Underwriters, as a result of which they have determined
that the information included in the Time of Sale Information that the
accountants have examined in accordance with such agreed upon procedures, is
accurate except as to such matters that are not deemed by the Depositor or the
Underwriters to be material.
6. Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates allocated
to it as set forth on Schedule I hereto shall be subject to the accuracy 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:
14
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for that purpose
shall be pending or, to the Depositor's knowledge, threatened by the
Commission and the Prospectus Supplement and each Free Writing Prospectus
required to be filed by the Depositor pursuant to Section 4(b) shall have been
filed or transmitted for filing by means reasonably calculated to result in a
filing with the Commission pursuant to Rule 424(b) under the 1933 Act or Rule
433 under the 1933 Act, as applicable.
(b) On the Closing Date, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of
counsel to the Depositor, in form and substance satisfactory to such
Underwriter, substantially to the effect that:
(A) The Depositor is a corporation in good standing
under the laws of the State of Delaware.
(B) The Depositor has corporate power and authority
to enter into and perform its obligations under this Agreement
and the Pooling and Servicing Agreement.
(C) Each of this Agreement and the Pooling and
Servicing Agreement has been duly authorized, executed and
delivered by the Depositor. Upon due authorization, execution
and delivery by the other parties thereto, the Pooling and
Servicing Agreement will constitute a valid, legal and binding
agreement of the Depositor, enforceable against the Depositor
in accordance with its terms, except as enforceability may be
limited by (1) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors generally,
(2) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law and (3) such other
exceptions as are reasonably acceptable to the Underwriters.
(D) The Certificates, when duly and validly
executed, authenticated and delivered in accordance with the
Pooling and Servicing Agreement and paid for in accordance with
this Agreement, will be entitled to the benefits of the Pooling
and Servicing Agreement.
(E) The Registration Statement was declared
effective under the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act and not withdrawn, and no proceedings for
that purpose have been initiated or threatened by the
Commission.
(F) At the time it became effective, the
Registration Statement (other than any financial or statistical
information included or incorporated by reference therein, as
to which no opinion need be rendered) complied as to form
15
in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations.
(G) To such counsel's knowledge and information,
there are no material contracts, indentures, or other documents
of the Depositor required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(H) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended, and the issuance and sale of the Certificates in
the manner contemplated by the Prospectus will not cause the
Trust Fund to be subject to registration or regulation as an
"investment company" under the Investment Company Act of 1940,
as amended.
(I) No consent, approval, authorization, or order
of any State of New York or federal court or governmental
agency or body is required for the consummation by the
Depositor of the transactions contemplated herein, except (1)
such as have been obtained, (2) such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and sale of the Certificates by the Underwriters, as
to which no opinion need be expressed and (3) any recordation
of the assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that has not
yet been completed.
(J) Neither the sale of the Certificates to the
Underwriters pursuant to this Agreement, nor the consummation
by the Depositor of any other of the transactions contemplated
by, or the fulfillment by the Depositor of the terms of, this
Agreement or the Pooling and Servicing Agreement, will conflict
with or result in a breach or violation of any term or
provision of, or constitute a default (or an event which with
the passing of time or notification or both, would constitute a
default) under, (1) the certificate of incorporation or by-laws
of the Depositor or, (2) to the knowledge of such counsel, any
material indenture, agreement or instrument to which the
Depositor is a party or by which it is bound or, (3) any State
of New York or federal statute or regulation applicable to the
Depositor or, (4) to the knowledge of such counsel, any order
of any New York or federal court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Depositor except, in the case of either (2) or (4),
for any conflict, breach, violation or default that, in the
judgment of such counsel, is not reasonably likely to
materially and adversely affect the Depositor's ability to
perform its obligations under this Agreement or the Pooling and
Servicing Agreement.
(ii) An opinion, dated the Closing Date, of counsel to the
Underwriters, reasonably acceptable to the Underwriters.
(iii) In giving their opinions required by the foregoing
subsections (i) and (ii) of this Section, counsel to the Depositor and
the Underwriters, respectively, shall
16
in each case additionally state that nothing has come to such counsel's
attention that has caused it to believe that (i), in the case of
counsel to the Depositor, the Registration Statement, the Prospectus or
the Time of Sale Information, and (ii) in the case of counsel to the
Underwriters, the Prospectus or the Time of Sale Information (in each
case other than any financial statements and supporting schedules and
statistical and/or accounting information included therein, as to which
no statement need be made), in the case of the Registration Statement,
as of the time it became effective, in the case of the Prospectus, as
of the date thereof or as of the Closing Date, and as of the Time of
Sale, in the case of the Time of Sale Information, contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
statement shall be based upon conferences and telephone conversations
with representatives of the parties hereto, the Mortgage Loan Sellers,
the Master Servicers, the Special Servicer, the Certificate
Administrator, the Tax Administrator and the Trustee and such statement
may be qualified that, with limited exception, such counsel will not
have reviewed any loan documents.
Such opinion(s) may express its (their) reliance as to factual
matters on the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized representatives of,
the parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the party on behalf of
which such opinion is being rendered. Such opinion(s) may be qualified as an
opinion only on the General Corporation Law of the State of Delaware, the laws
of the State of New York and the federal law of the United States.
(c) On the Closing Date, each Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA counsel to
the Depositor (i) regarding the qualification of each of REMIC I, REMIC II and
REMIC III as a real estate mortgage investment conduit within the meaning of
Sections 860A through 860G of the Internal Revenue Code of 1986 and (ii) to
the effect that the statements in the Base Prospectus and the Prospectus
Supplement under the headings "Material Federal Income Tax Consequences" and
"ERISA Considerations", to the extent that they constitute matters of federal
law or legal conclusions with respect thereto, while not purporting to discuss
all possible consequences of investment in the Certificates, are correct in
all material respects with respect to those consequences or matters that are
discussed therein. Such opinion(s) may express its (their) reliance as to
factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling and
Servicing Agreement and on certificates furnished by public officials. Such
opinion(s) may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto. Such
opinion(s) may be qualified as an opinion only on the federal tax and ERISA
law of the United States.
(d) The Depositor shall have delivered to each Underwriter a
certificate, dated the Closing Date, and signed by the President, a Senior
Vice President or a Vice President of the Depositor, to the effect that the
signer of such certificate has examined, or has relied upon an
17
examination conducted by appropriate persons authorized by him or her of, the
Agreement, the Prospectus, the Pooling and Servicing Agreement and various
other closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(i) the representations and warranties of the Depositor in
this Agreement and the Pooling and Servicing Agreement are true and
correct in all material respects;
(ii) the Depositor has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date;
(iii) since the date of this Agreement, there has been no
material adverse change in the financial condition of the Depositor;
and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(e) Each Mortgage Loan Seller shall have delivered to each
Underwriter a certificate, dated the Closing Date, and signed by the
President, a Senior Vice President or a Vice President of the Mortgage Loan
Seller to the effect that:
(i) the representations and warranties of the Mortgage
Loan Seller in the respective Mortgage Loan Purchase Agreement are true
and correct in all material respects except as indicated on Schedule A
thereto;
(ii) the Mortgage Loan Seller has, in all material
respects, complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied under the
respective Mortgage Loan Purchase Agreement at or prior to the Closing
Date; and
(iii) since the date of this Agreement, there has been no
material adverse change in the financial condition of the Mortgage Loan
Seller.
(f) The Depositor and each Underwriter shall have received from
Deloitte & Touche LLP, certified public accountants, a letter dated the
Closing Date, in form and substance satisfactory to such Underwriter, stating
in effect that:
(i) they have performed certain specified procedures as a
result of which they have determined that certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement agrees with the data sheet or computer tape prepared by or
on behalf of each Mortgage Loan Seller, unless otherwise noted in such
letter; and
(ii) they have compared the data contained in the data
sheet or computer tape referred to in the immediately preceding clause
(i) to information contained in the Mortgage Files and in such other
sources as shall be specified by them,
18
and found such data and information to be in agreement, unless
otherwise noted in such letter.
(g) The Depositor shall have received the accountant's letters
specified in Section 5(i).
(h) Each Underwriter shall have received, with respect to each
of the Master Servicers, the Special Servicer, the Certificate Administrator,
the Tax Administrator and the Trustee, a favorable opinion of counsel, dated
the Closing Date, addressing the valid existence of such party under the laws
of the jurisdiction of its organization, the due authorization, execution and
delivery of the Pooling and Servicing Agreement by such party and, subject to
the same limitations as set forth in Section 6(b)(i)(C), the enforceability of
the Pooling and Servicing Agreement against such party and such other opinions
as shall be reasonably requested by such Underwriter. Such opinion may express
its reliance as to factual matters on representations and warranties made by,
and on certificates or other documents furnished by, officers and/or
authorized representatives of parties to, the Pooling and Servicing Agreement
and on certificates furnished by public officials. Such opinion may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the party on behalf of
which such opinion is being rendered.
(i) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change, in or
affecting the business or properties of the Depositor or a Mortgage Loan
Seller (including any of the Mortgage Loans) which such Underwriter concludes,
in the reasonable judgment of such Underwriter, materially impairs the
investment quality of the Certificates so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Certificates as contemplated by the Time of Sale Information (excluding the
Corrective Information) and the Prospectus.
(j) The Certificates shall have been assigned ratings by the
Rating Agencies (as defined in the Pooling and Servicing Agreement) no less
than those set forth on Schedule I and such ratings shall not have been
withdrawn, suspended or qualified.
(k) The Underwriters shall have received copies of any opinions
of counsel to the Depositor supplied to the Rating Agencies relating to
certain matters with respect to the Certificates. Any such opinions shall be
dated the Closing Date and addressed to the Underwriters or accompanied by
reliance letters addressed to the Underwriters.
(l) The Depositor shall have furnished to the Underwriters such
further opinions, information, certificates and documents as the Underwriters
may reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident hereto
shall be in all material respects reasonably satisfactory in form and
substance to the Underwriters and their counsel.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each
Underwriter (severally and not jointly), its directors and officers and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934
19
Act, from and against any and all expenses, losses, claims, damages and other
liabilities (including without limitation the reasonable costs of
investigation and legal defense) (the "Liabilities") caused by (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, not misleading, or any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any Issuer Free Writing Prospectus or any
Issuer Information contained in any Underwriter Free Writing Prospectus, or
the omission or alleged omission to state a material fact necessary to make
the statements therein (when read in conjunction with the other Time of Sale
Information), in light of the circumstances under which they were made, not
misleading, which was not corrected by Corrective Information subsequently
supplied by the Depositor or any Mortgage Loan Seller to any Underwriter
within a reasonable period of time prior to the Time of Sale, or (iii) any
breach of the representation and warranty in Section 1(a)(xviii); provided
that, in the case of clauses (i) and (ii) above, insofar as the Liabilities
are caused by any such untrue statement or omission or alleged untrue
statement or omission with respect to any information in the Prospectus as to
which any Underwriter has agreed to indemnify the Depositor pursuant to
Section 7(b), the Depositor shall have no obligation to so indemnify and hold
harmless; and provided, further, that the Depositor shall have no obligation
to so indemnify and hold harmless to the extent that the Liabilities arise out
of or are based upon an untrue statement or omission or an alleged untrue
statement or omission with respect to the Mortgage Loan Seller Information
(including without limitation untrue statements or alleged untrue statements
or omissions or alleged untrue omissions in the portions of the Prospectus
Supplement and any free writing prospectus under the heading "Yield,
Prepayment and Maturity Considerations" that arise out of or are based upon
untrue statements or alleged untrue statements or omissions or alleged
omissions in the Mortgage Loan Seller Information).
(b) Each Underwriter shall, severally and not jointly,
indemnify and hold harmless the Depositor, its directors and its officers who
signed the Registration Statement and each person, if any, who controls the
Depositor within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all Liabilities as incurred, but only with
respect to Liabilities caused by any (i) untrue statements or alleged untrue
statements of a material fact, or omissions or alleged omissions to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in the Underwriter
Information and (ii) untrue statements or alleged untrue statements of a
material fact, in any Underwriter Free Writing Prospectus prepared by or on
behalf of such Underwriter or omission or alleged omission to state in such
Underwriter Free Writing Prospectus a material fact necessary in order to make
the statements therein (when read in conjunction with the Time of Sale
Information), in the light of the circumstances under which they were made,
not misleading; provided, that no Underwriter shall be obligated to so
indemnify and hold harmless (A) to the extent such Liabilities are caused by a
misstatement or omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Depositor or any Mortgage Loan Seller to any Underwriter
within a reasonable period of time prior to the Time of Sale or (B) with
respect to information that is also contained in the Time of Sale Information.
20
(c) Each indemnified party shall give notice in writing as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder,
but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than under
subsection (a) or (b) of this Section 7. Upon request of the indemnified
party, the indemnifying party shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding as incurred. If any
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party may
participate at its own expense in the defense of any such action. The
indemnifying party may elect to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from
the indemnified party. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them
or (iii) the indemnifying party shall have failed to designate within a
reasonable period of time counsel reasonably satisfactory to the indemnified
party (in which case the fees and expenses shall be paid as incurred by the
indemnifying party). In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. However, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel for which the
indemnifying party is obligated under this subsection, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than
30 days after receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. If an
indemnifying party assumes the defense of any proceeding, it shall be entitled
to settle such proceeding with the consent of the indemnified party or, if
such settlement provides for an unconditional release of the indemnified
party, without any admission of fault, culpability or failure to act or on
behalf of the indemnified party, in connection with all matters relating to
the proceeding that have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
due in accordance with its terms but is for any reason unavailable to an
indemnified party under subsection (a) or (b), or insufficient to hold
harmless an indemnified party, in respect of any losses, claims,
21
damages or liabilities under subsection (a) or (b) on grounds of public policy
or otherwise, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Depositor on the one hand and the applicable Underwriter on
the other from the offer and sale of the Certificates pursuant hereto or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Depositor on the one hand and of such Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or other liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Depositor on the one
hand, and such Underwriter on the other, in connection with the offering of
the Certificates underwritten by such Underwriter shall be deemed to be in the
same respective proportions that the total proceeds from the sale of the
Certificates underwritten by such Underwriter (before deducting expenses)
received by the Depositor and the amount by which (i) the total price received
by such Underwriter with respect to the initial resale to investors in the
Certificates acquired by such Underwriter exceeds (ii) the total underwriting
discounts and commissions received by such Underwriter (or, if no such
Underwriter discounts and commissions are payable hereunder, the amount of the
other fees payable to such Underwriter in connection with the offering of the
Certificates), bear to the aggregate offering price of the Certificates. The
relative fault of the Depositor on the one hand and of such Underwriter on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Depositor or by such Underwriter, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The parties hereto agree that it would not be just and
equitable if contribution were determined by pro rata allocation or by any
other method of allocation that does not take account of the considerations
referred to in subsection (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or other
liabilities referred to in this Section 7 shall be deemed to include any legal
fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
claim. If any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party which received such payment shall promptly refund the amount so paid
to the party which made such payment. Notwithstanding the provisions of
subsection (d) above or this subsection (e), no Underwriter shall be required
to contribute any amount in excess of the amount by which (i) the total
underwriting discounts and commissions and other fees received by such
Underwriter in connection with the offering of the Certificates exceeds (ii)
the amount of damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) 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.
22
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Depositor, an Underwriter, any of their respective directors or officers, or
any person controlling the Depositor or such Underwriter within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, and (iii)
acceptance of and payment for any of the Certificates.
(g) The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective amount
of Certificates they have purchased hereunder, and not joint.
(h) Each Underwriter (the "Indemnifying Underwriter") will
indemnify and hold harmless the other Underwriters and each person, if any,
who controls such Underwriter within the meaning of either the 1933 Act or the
1934 Act (the "Non-Indemnifying Underwriter") from and against any and all
losses, claims, damages or liabilities, joint or several, to which the
Non-Indemnifying Underwriter becomes subject under the 1933 Act, the 1934 Act
or other federal or state statutory law or regulation, common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact or the omission or alleged
omission (when read in conjunction with the Time of Sale Information) to state
a material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading at the Time of Sale,
contained in any Underwriter Free Writing Prospectus prepared by, or on behalf
of, or used or referred to by, such Indemnifying Underwriter or (ii) the
failure of such Indemnifying Underwriter, or any member of its selling group,
to comply with any provision of Sections 4(b) or 9, and agrees to reimburse
such Non-Indemnifying Underwriter, as incurred for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, except to the extent such
losses, claims, damages or liabilities are caused by a misstatement or
omission resulting from an error or omission in the Issuer Information which
was not corrected by Corrective Information subsequently supplied by the
Depositor or any Mortgage Loan Seller to any Underwriter within a reasonable
period of time prior to the Time of Sale. This agreement will be in addition
to any liability that any Underwriter may otherwise have.
8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or any controlling
person in respect of such Underwriter, and shall survive delivery of the
Certificates to the Underwriters.
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
23
purchase is not more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date, the other Underwriter shall be
obligated to purchase the Certificates which such defaulting Underwriter
agreed but failed or refused to purchase on such date; provided that in no
event shall the principal amount of Certificates that any Underwriter has
agreed to purchase pursuant to Section 3 be increased pursuant to this Section
9 by an amount in excess of one-ninth of such principal amount of
Certificates, without the written consent of such Underwriter, and provided
further that no Underwriter shall be obligated under this Section 9 to
purchase Certificates of a Class that it is not otherwise obligated to
purchase under this Agreement.
If, on the Closing Date, one of the Underwriters shall fail or refuse
to purchase Certificates that it has agreed to purchase hereunder on such date
and the aggregate principal amount of Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date and arrangements satisfactory to the
non-defaulting Underwriter and the Depositor for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter or of the Depositor. In any such case either such non-defaulting
Underwriter or the Depositor shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Prospectus or in any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Termination of Agreement.
(a) Any Underwriter may terminate its obligations under this
Agreement, by notice to the Depositor, at any time at or prior to the Closing
Date if the sale of the Certificates provided for herein is not consummated
because of any failure or refusal on the part of the Depositor to comply in
all material respects with the terms, or to fulfill in all material respects
any of the conditions of, this Agreement, or if for any reason the Depositor
shall be unable to perform in all material respects its obligations under this
Agreement.
(b) Any Underwriter may terminate its obligations under this
Agreement in the absolute discretion of such Underwriter, by notice given to
the Depositor, if (A) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Depositor or its affiliates shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or State of
New York authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity
or crisis, or any major disruption of settlement or clearance of securities in
the United States that, in the judgment of such Underwriter, is material and
adverse and (B) in the case of any of the events specified in clauses (A)(i)
through (iv) above, such event singly or together with any other such event,
makes it, in
24
the judgment of such Underwriter, impracticable to market the Certificates on
the terms and in the manner contemplated in the Time of Sale Information and
the Prospectus.
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 10(a), the Depositor shall reimburse such
Underwriter for all reasonable out-of pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been reasonably incurred by
such Underwriter in connection with the proposed purchase and sale of the
Certificates.
11. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed duly given if sent by facsimile or delivered by courier,
in either case with appropriate confirmation of receipt. Notices to the
Depositor shall be given to it at ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., 4
World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(fax: ▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇ ▇. ▇▇▇ (with a copy to ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Office of the General Counsel, 4 World Financial Center, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇)), and as to
any party, to such other address as may hereafter be furnished by such party
to the others in writing.
12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriters and the Depositor and
their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their respective successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
13. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State.
14. Entire Agreement.
This Agreement, together with any contemporaneous written agreements
and any prior written agreements (to the extent not superseded by this
Agreement) that relate to the offering of the Certificates, represents the
entire agreement between the Depositor, on the one hand, and the Underwriters,
on the other, with respect to the preparation of the Prospectus, and the
conduct of the offering, and the purchase and sale of the Certificates.
25
15. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings between the parties hereto relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such amendment, waiver, discharge or termination is sought.
This Agreement may be signed in any number of duplicate originals, each of
which shall be deemed an original, which taken together shall constitute one
and the same instrument.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Depositor in accordance with its
terms.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE INVESTORS,
INC.
By _____________________________
Title:
27
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 _____________________________
Authorized Signatory
28
ANNEX A
The First Page of the Depositor's Free Writing Prospectus dated _________, 2006
29
ANNEX B
The First Page of each additional Free Writing Prospectus of the Depositor
30
ANNEX C
Pricing Information Annex
31
SCHEDULE I
[Depositor] Commercial Mortgage Pass-Through Certificates, Series __________,
Class A-1, Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class A-AB, Class A-4, Class A-M and Class
A-J.
================================================================================================================================
Underwriters Amount of Certificates to be Purchased Class of Certificates to be Purchased
--------------------------------------------------------------------------------------------------------------------------------
A-1
--------------------------------------------------------------------------------------------------------------------------------
A-1
--------------------------------------------------------------------------------------------------------------------------------
A-2
--------------------------------------------------------------------------------------------------------------------------------
A-2
--------------------------------------------------------------------------------------------------------------------------------
A-3
--------------------------------------------------------------------------------------------------------------------------------
A-3
--------------------------------------------------------------------------------------------------------------------------------
A-AB
--------------------------------------------------------------------------------------------------------------------------------
A-AB
--------------------------------------------------------------------------------------------------------------------------------
A-4
--------------------------------------------------------------------------------------------------------------------------------
A-4
--------------------------------------------------------------------------------------------------------------------------------
A-M
--------------------------------------------------------------------------------------------------------------------------------
A-M
--------------------------------------------------------------------------------------------------------------------------------
A-J
--------------------------------------------------------------------------------------------------------------------------------
A-J
================================================================================================================================
SCHEDULE I (CONTINUED)
=============================================================================================================================
Class Initial Aggregate Approximate Initial Purchase Rating(3)
Designation Principal Amount of Class(1) Pass-Through Rate Price(2) Moody's/S&P
-----------------------------------------------------------------------------------------------------------------------------
A-1 AAA/Aaa
-----------------------------------------------------------------------------------------------------------------------------
A-2 AAA/Aaa
-----------------------------------------------------------------------------------------------------------------------------
A-3 AAA/Aaa
-----------------------------------------------------------------------------------------------------------------------------
A-AB AAA/Aaa
-----------------------------------------------------------------------------------------------------------------------------
A-4 AAA/Aaa
-----------------------------------------------------------------------------------------------------------------------------
A-M AAA/Aaa
-----------------------------------------------------------------------------------------------------------------------------
A-J AAA/Aaa
=============================================================================================================================
---------
(1) Subject to a variance of plus or minus 5.0%
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates shown is net accrued
interest. The purchase price to be paid will include accrued interest at
the initial Pass-Through Rate therefor on the aggregate stated or
notional amount, as applicable, thereof to be purchased from the Cut-off
Date to but not including the Closing Date. The purchase price does not
reflect any underwriting discount.
(3) By each of ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard &
Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P").
