EXHIBIT 1.1
EXECUTION VERSION
MERRILL LYNCH MORTGAGE TRUST 2005-CKI1
Commercial Mortgage Pass-Through Certificates, Series 2005-CKI1
Class A-1, Class A-1D, Class A-2, Class A-2FL, Class A-3, Class
A-4FL, Class
A-5, Class A-SB, Class A-6, Class A-1A, Class AM, Class AJ, Class
B, Class C and
Class D
Underwriting Agreement
December 1, 2005
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representative of the several
Underwriters listed on Schedule I hereto
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
250 Vesey Street, 15th Floor
New York, New York 10080
Ladies and Gentlemen:
Merrill Lynch Mortgage Investors, Inc., a Delaware corporation (the
"DEPOSITOR"), proposes to sell to the several Underwriters listed
on Schedule I
(the "UNDERWRITERS"), for whom Merrill Lynch, Pierce, Fenner &
Smith
Incorporated is acting as representative (the "REPRESENTATIVE"),
the principal
amount or notional amount, as the case may be, of Commercial
Mortgage
Pass-Through Certificates, Series 2005-CKI1, Classes A-1, A-1D,
A-2, A-2FL, A-3,
A-4FL, A-5, A-SB, A-6, A-1A, AM, AJ, B, C and D (the "OFFERED
CERTIFICATES") as
set forth in Schedule I. Merrill Lynch, Pierce, Fenner & Smith
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 11.15% of the
Class C
Certificates, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated is acting
as sole bookrunning manager with respect to the remainder of the
Class C
Certificates and all other classes of Offered Certificates. IXIS
Securities
North America Inc. KeyBanc Capital Markets, a Division of McDonald
Investments
Inc., Morgan Stanley & Co. Incorporated and Goldman, Sachs
& Co. will act as
co-managers. The Offered Certificates, together with the Commercial
Mortgage
Pass-Through Certificates, Series 2005-CKI1, Classes E, F, G, H, J,
K, L, M, N,
P, Q, X, R-I and R-II (the "PRIVATE CERTIFICATES") are referred to
herein as the
"CERTIFICATES." The Certificates will represent beneficial
interests in, among
other things, a pool of mortgage loans described in the Prospectus
referred to
below (the "MORTGAGE LOANS") and certain monies received under each
Mortgage
Loan after the related due date for such Mortgage Loan in December
2005 (or,
with respect to those Mortgage Loans, if any, that have their first
due date in
January 2006, December 1, 2005 (in any case, the "CUT-OFF DATE").
The
Certificates will be issued pursuant to the provisions of a Pooling
and
Servicing Agreement to be dated as of December 1, 2005 (the
"POOLING AND
SERVICING AGREEMENT"), between the Depositor, KeyCorp
1
Real Estate Capital Markets, Inc., as master servicer (the "MASTER
SERVICER"),
J. E. Robert Company Inc., as special servicer (the "SPECIAL
SERVICER"), LaSalle
Bank National Association, as trustee (the "TRUSTEE"), and ABN AMRO
Bank N.V.,
as fiscal agent.
The Depositor hereby confirms its agreement with the several
Underwriters
concerning the purchase and sale of the Offered Certificates, as
follows:
1. Registration Statement. The Depositor has prepared and filed
with the
Securities and Exchange Commission (the "COMMISSION"), in
accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and
regulations of the Commission thereunder (collectively, the
"SECURITIES Act"), a
registration statement on Form S-3 (No. 333-126218), including a
prospectus,
relating to the Offered Certificates. The registration statement as
amended at
the time when it became effective, or, if a post-effective
amendment is filed
with respect thereto, as amended by such post-effective amendment
at the time of
its effectiveness, is referred to in this Agreement as the
"REGISTRATION
STATEMENT". The Depositor also has filed with, or proposes to file
with, the
Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement
specifically relating to the Offered Certificates (the "PROSPECTUS
SUPPLEMENT").
The related prospectus covering the Offered Certificates in the
form first used
to confirm sales of the Offered Certificates is hereinafter
referred to as the
"BASIC PROSPECTUS", and the Basic Prospectus as supplemented by the
Prospectus
Supplement in the form first used to confirm sales of the Offered
Certificates
is hereinafter referred to as the "PROSPECTUS". Any reference in
this Agreement
to the Registration Statement, any preliminary prospectus used in
connection
with the offering of the Offered Certificates (the "PRELIMINARY
PROSPECTUS") or
the Prospectus shall be deemed to refer to and include any exhibits
thereto and
the documents incorporated by reference therein pursuant to Item 12
of Form S-3
under the Securities Act, as of the effective date of the
Registration Statement
or the date of such Preliminary Prospectus or the Prospectus, as
the case may
be, and any reference to "amend," "amendment" or "supplement" with
respect to
the Registration Statement, any Preliminary Prospectus or the
Prospectus shall
be deemed to refer to and include any documents filed as of the
Closing Date (as
defined below) under the Securities Exchange Act of 1934, as
amended, and the
rules and regulations of the Commission thereunder (collectively,
the "EXCHANGE
ACT") that are deemed to be incorporated by reference therein.
When used in this Agreement, "BASIC DOCUMENTS" shall mean (i) the
Pooling
and Servicing Agreement, (ii) the Certificates, (iii) the Mortgage
Loan Purchase
Agreement, dated as of December 1, 2005, between Merrill Lynch
Mortgage Lending,
Inc. ("MERRILL") and the Depositor (the "MERRILL MORTGAGE LOAN
PURCHASE
AGREEMENT"), (iv) the Mortgage Loan Purchase Agreement, dated as of
December 1,
2005, between Countrywide Commercial Real Estate Finance, Inc.
("COUNTRYWIDE")
and the Depositor (the "COUNTRYWIDE MORTGAGE LOAN PURCHASE
AGREEMENT"), (v) the
Mortgage Loan Purchase Agreement, dated as of December 1, 2005,
between IXIS
Real Estate Capital Inc. ("IXIS") and the Depositor (the "IXIS BANK
MORTGAGE
LOAN PURCHASE AGREEMENT"), (vi) the Mortgage Loan Purchase
Agreement, dated as
of December 1, 2005, between KeyBank National Association
("KEYBANK") and the
Depositor (the "KEYBANK MORTGAGE LOAN PURCHASE AGREEMENT"), and
(vii) any other
contract, agreement or instrument which is or is to be entered into
by the
Depositor on the Closing Date or otherwise in connection with any
of the
foregoing or this Agreement. Merrill, Countrywide, IXIS and KeyBank
are
collectively referred to herein as the "SELLERS". To the extent not
defined
2
herein, capitalized terms used herein have the meanings assigned to
such terms
in the Pooling and Servicing Agreement.
2. Purchase of the Offered Certificates by the Underwriters. (a)
(a) The
Depositor agrees to sell the Offered Certificates to the several
Underwriters as
provided in this Agreement, and each Underwriter, on the basis of
the
representations, warranties and agreements set forth herein and
subject to the
conditions set forth herein, agrees, severally and not jointly, to
purchase from
the Depositor, the respective principal amount or notional amount,
as the case
may be, of each class of the Offered Certificates set forth
opposite such
Underwriter's name in Schedule I at the Purchase Price set forth in
Schedule I,
plus, if applicable, accrued interest on the actual principal
amount or notional
amount thereof at the applicable Pass-Through Rate from November 1,
2005 to the
Closing Date (as defined below). The Depositor will not be
obligated to deliver
any of the Offered Certificates except upon payment for all the
Offered
Certificates to be purchased as provided herein.
(b) The Depositor understands that the Underwriters intend to make
a
public offering of their respective portions of the Offered
Certificates as soon
after the effectiveness of this Agreement as in the judgment of the
Lead
Underwriters is advisable, and initially to offer the Offered
Certificates on
the terms set forth in the Prospectus.
(c) Merrill Lynch, Pierce, Fenner & Smith Incorporated
represents and
warrants to the Depositor that it has the authority to act as
Representative of
the Underwriters and to bind the Underwriters hereto.
(d) Each Underwriter represents, warrants and agrees that: (i) it
has
only communicated or caused to be communicated and will only
communicate or
cause to be communicated any invitation or inducement to engage in
investment
activity (within the meaning of section 21 of the Financial
Services and Markets
Act 2000 (the "FSMA")) received by it in connection with the issue
or sale of
any Offered Certificates in circumstances in which section 21(1) of
the FSMA
does not apply to the Depositor; and (ii) it has complied and will
comply with
all applicable provisions of the FSMA with respect to anything done
by it in
relation to the Offered Certificates in, from or otherwise
involving the United
Kingdom.
(e) 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 Company
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
Offered
Certificates to the public in that Relevant Member State prior to
the
publication of a prospectus in relation to the Offered 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
Offered
Certificates to the public in that Relevant Member State at any
time:
3
(i)
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;
(ii) 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
(iii) 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
Offered Certificates to the public" in relation to any Offered
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 Offered
Certificates
to be offered so as to enable an investor to decide to purchase or
subscribe the
Offered 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.
(f) Payment for and delivery of the Offered Certificates will be
made
at the offices of Sidley Austin Brown & Wood LLP, 787 Seventh
Avenue, New York,
New York 10019, at 10:00 A.M., New York City time, on December 7,
2005, or at
such other time on the same or such other date, not later than the
fifth
business day thereafter, as the Lead Underwriters and the Depositor
may agree
upon in writing. The time and date of such payment and delivery is
referred to
herein as the "CLOSING DATE".
(g) Payment for the Offered Certificates shall be made by wire
transfer in immediately available funds to the account(s) specified
by the
Depositor to the Lead Underwriters against delivery to the nominee
of The
Depository Trust Company, for the account of the Underwriters, of
one or more
global notes representing the Offered Certificates (collectively,
the "GLOBAL
NOTES"), with any transfer taxes payable in connection with the
sale of the
Offered Certificates duly paid by the Depositor. The Global Notes
will be made
available for inspection by the Lead Underwriters not later than
1:00 P.M., New
York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Depositor. The Depositor
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration
Statement
has been declared effective by the Commission under the Securities
Act; no order
suspending the effectiveness of the Registration Statement has been
issued by
the Commission and no proceeding for that purpose has been
initiated or, to the
best knowledge of the Depositor, threatened by the Commission; and
the
Registration Statement and any amendment thereto, at the time the
Registration
Statement became effective, as of the date of the Prospectus
Supplement and as
of the date that any such amendment to the Registration Statement
became
4
effective, did and will (during the Prospectus Delivery Period (as
defined
below)) comply in all material respects with the Securities Act,
and did not and
will not contain any untrue statement of a material fact or omit to
state a
material fact required to be stated therein or necessary in order
to make the
statements therein not misleading; and as of the date of the
Prospectus
Supplement, as of the date of any amendment or other supplement to
the
Prospectus and on the Closing Date, the Prospectus did and will
comply in all
material respects with the Securities Act and did not and will not
contain any
untrue statement of a material fact or omit to state a material
fact necessary
in order to make the statements therein, in the light of the
circumstances under
which they were made, not misleading; provided that the Depositor
makes no
representation and warranty with respect to (i) any statements or
omissions made
in reliance upon and in conformity with information relating to any
Underwriter
furnished to the Depositor in writing by such Underwriter through
the Lead
Underwriters expressly for use in the Registration Statement and
the Prospectus
and any amendment or supplement thereto or (ii) the Sellers'
Information (as
defined in Section 6(a)) or (iii) the 8-K Information (as defined
in Section
7(a)); the conditions to the use by the Depositor of a registration
statement on
Form S-3 under the Securities Act, as set forth in the General
Instructions to
Form S-3, have been satisfied with respect to the Registration
Statement and the
Prospectus.
(b) No Material Adverse Change. Other than as set forth or
contemplated in the Prospectus, since the date as of which
information is given
in the Prospectus, there has not been any material adverse change
or any
development involving a prospective material adverse change, in or
affecting the
business, prospects, management, financial position, stockholders'
equity or
results of operations of the Depositor.
(c) Organization and Good Standing. The Depositor has been duly
organized and is a validly existing organization in good standing
under the laws
of its jurisdiction of organization, is duly qualified to do
business and is in
good standing as a foreign entity in each jurisdiction in which the
conduct of
its business requires such qualification, and has all power and
authority
necessary to enter into and perform its obligations under this
Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements and to
own or hold its properties and to conduct the business in which it
is engaged,
except where the failure to be so qualified or have such power or
authority
would not, individually or in the aggregate, have a material
adverse effect on
the transactions contemplated herein or in the Basic Documents (a
"MATERIAL
ADVERSE EFFECT").
(d) Due Authorization. The Depositor has full right, power and
authority to execute and deliver this Agreement, the Certificates,
the Pooling
and Servicing Agreement and the other Basic Documents and to
perform its
obligations hereunder and thereunder; and all action (corporate and
other)
required to be taken for the due and proper authorization,
execution and
delivery of this Agreement and each of the Basic Documents and the
consummation
of the transactions contemplated hereby and thereby has been duly
and validly
taken.
(e) The Pooling and Servicing Agreement. The Pooling and Servicing
Agreement has been duly authorized by the Depositor and, when duly
executed and
delivered in accordance with its terms by each of the parties
thereto, will
constitute a valid and legally binding agreement of the Depositor
enforceable
against the Depositor in accordance with its
5
terms, except as enforceability may be limited by applicable
bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights
generally or by equitable principles relating to enforceability
(collectively,
the "ENFORCEABILITY EXCEPTIONS").
(f)The Certificates. The Offered Certificates have been duly
authorized and, when duly executed, authenticated, issued and
delivered as
provided in the Pooling and Servicing Agreement and paid for as
provided herein,
will be duly and validly issued and outstanding and will be
entitled to the
benefits and security afforded by the Pooling and Servicing
Agreement.
(g)Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Depositor and, when duly executed and
delivered in
accordance with its terms by or on behalf of each of the other
parties hereto,
will constitute a valid and legally binding agreement of the
Depositor
enforceable against the Depositor in accordance with its terms,
subject to the
Enforceability Exceptions.
(h)Basic Documents. Each of the Basic Documents to which the
Depositor
is a party has been duly authorized and, when duly executed and
delivered in
accordance with its terms by each of the parties thereto, will
constitute a
valid and legally binding agreement of the Depositor enforceable
against the
Depositor in accordance with its terms, subject to the
Enforceability
Exceptions.
(i)Descriptions of Basic Documents. Each Basic Document conforms in
all material respects to the description thereof contained in the
Registration
Statement and the Prospectus.
(j)No Violation or Default. The Depositor is not (i) in violation
of
its charter, by-laws or similar organizational documents; (ii) in
default, and
no event has occurred that, with notice or lapse of time or both,
would
constitute such a default, in the due performance or observance of
any term,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan
agreement or other agreement or instrument to which the Depositor
is a party or
by which the Depositor is bound or to which any of the property or
assets of the
Depositor is subject; or (iii) in violation of any law or statute
or any
judgment, order or regulation of any court or governmental agency
or body having
jurisdiction over the Depositor, or any of its properties
("GOVERNMENTAL
AUTHORITY"), except, in the case of clauses (ii) and (iii) above,
for any such
default or violation that would not, individually or in the
aggregate, have a
Material Adverse Effect.
(k)No Conflicts with Existing Instruments. The execution, delivery
and
performance by the Depositor of this Agreement and each of the
Basic Documents,
the issuance and sale of the Certificates and compliance by the
Depositor with
the terms hereof and thereof and the consummation of the
transactions
contemplated by this Agreement and the Basic Documents will not (i)
conflict
with or result in a breach or violation of any of the terms or
provisions of, or
constitute a default under, or result in the creation or imposition
of any lien,
charge or encumbrance upon any property or assets of the Depositor
pursuant to,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or
instrument to which the Depositor is a party or by which the
Depositor is bound
or to which any of the property or
6
assets of the Depositor is subject; (ii) result in any violation of
the
provisions of the charter, by-laws or similar organizational
documents of the
Depositor; or (iii) result in the violation of any law or statute
or any
judgment, order or regulation of any Governmental Authority,
except, in the case
of clauses (i) and (iii) above, for any such conflict, breach or
violation that
would not, individually or in the aggregate, have a Material
Adverse Effect.
(l)No Consents Required. No consent, approval, authorization,
order,
registration or qualification of or with any Governmental Authority
is required
for the execution, delivery and performance by the Depositor of
this Agreement,
each of the Basic Documents, the issuance and sale of the
Certificates and
compliance by the Depositor with the terms hereof and thereof and
the
consummation of the transactions contemplated by this Agreement and
the Basic
Documents, except for such consents, approvals, authorizations,
orders and
registrations or qualifications as have already been obtained or as
of the
Closing Date will have been obtained or such as may be required
under applicable
state securities laws in connection with the purchase and
distribution of the
Offered Certificates by the Underwriters.
(m)Legal Proceedings. Except as described in the Prospectus, there
are
no legal, governmental or regulatory investigations, actions, suits
or
proceedings pending to which the Depositor is or may be a party or
to which any
property of the Depositor is or may be the subject that,
individually or in the
aggregate, if determined adversely to the Depositor, could
reasonably be
expected to have a Material Adverse Effect; to the best knowledge
of the
Depositor, no such investigations, actions, suits or proceedings
are threatened
or contemplated by any Governmental Authority or threatened by
others; and there
are no statutes, regulations or contracts, indentures or other
documents that
are required under the Securities Act to be filed as exhibits to
the
Registration Statement or described in the Registration Statement
or the
Prospectus and that are not so filed or described.
(n)Independent Accountants. Ernst & Young LLP are independent
public
accountants with respect to the Depositor as required by the
Securities Act.
(o)Title to Mortgage Loans. At the time of the execution of the
Pooling and Servicing Agreement, the Depositor (i) will convey to
the Trustee,
or cause to be conveyed to the Trustee, all of the Depositor's
right, title and
interest in and to the Mortgage Loans being transferred to the
Trustee pursuant
to the Pooling and Servicing Agreement, free and clear of Liens
granted by or
imposed upon the Depositor, and (ii) will not have assigned to any
other person
any of its right, title or interest in the Mortgage Loans or in the
Pooling and
Servicing Agreement or the Certificates. Upon execution and
delivery of the
Pooling and Servicing Agreement by the Trustee, the Trustee will
have acquired
ownership of all of the Depositor's right, title and interest in
and to the
Mortgage Loans except to the extent disclosed in the Prospectus,
and upon
delivery to the Underwriters of the Offered Certificates pursuant
hereto, each
Underwriter will have good title to the Offered Certificates
purchased by such
Underwriter, in each case free of Liens granted by or imposed upon
the
Depositor.
(p)Investment Company Act. Neither the Depositor nor the trust fund
created under the Pooling and Servicing Agreement (the "Trust
Fund") is (and,
after giving effect to the offering and sale of the Certificates
and the
application of the proceeds thereof as
7
described in the Prospectus, neither the Depositor nor the Trust
Fund will be)
an "investment company" or an entity "controlled" by an "investment
company"
within the meaning of the Investment Company Act of 1940, as
amended, and the
rules and regulations of the Commission thereunder (collectively,
"INVESTMENT
COMPANY ACT").
(q) Representations in Basic Documents. The representations and
warranties of the Depositor contained in the Basic Documents are
true and
correct in all material respects.
(r) Taxes. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the
Pooling and
Servicing Agreement, the other Basic Documents and the delivery and
sale of the
Certificates (other than such federal, state and local taxes as may
be payable
on the income or gain recognized therefrom) have been or will be
paid at or
prior to the Closing Date.
(s) Accounting Treatment. Upon the sale to unaffiliated third
parties
of Certificates representing at least 10% of the total fair value
of all of the
Certificates, the Depositor will, under generally accepted
accounting
principles, report the transfer of the Mortgage Loans to the
Trustee in exchange
for the Certificates and the sale of the Offered Certificates to
the
Underwriters pursuant to this Agreement as a sale of the interest
in the
Mortgage Loans evidenced by such Offered Certificates.
(t) Solvency. The Depositor will be solvent at all relevant times
prior to, and will not be rendered insolvent by, the sale of the
Offered
Certificates to the Underwriters.
(u) No Intention to Delay or Defraud. The Depositor is not selling
the
Offered Certificates to the Underwriters with any intent to hinder,
delay or
defraud any of the creditors of the Depositor.
4. Further Agreements of the Depositor. The Depositor covenants and
agrees
with each Underwriter that:
(a) Filing of Prospectus. The Depositor will file the final
Prospectus
with the Commission within the time periods specified by Rule
424(b) under the
Securities Act; and the Depositor will furnish copies of the
Prospectus to the
Underwriters in New York City prior to 10:00 A.M., New York City
time, at least
three days prior to the Closing Date in such quantities as the Lead
Underwriters
may reasonably request.
(b) Delivery of Copies. The Depositor will deliver (i) to the Lead
Underwriters, one copy of the Registration Statement as originally
filed and
each amendment thereto, in each case including all exhibits and
consents filed
therewith, and (ii) to each Underwriter (A) a conformed copy of the
Registration
Statement as originally filed and each amendment thereto, in each
case including
all exhibits and consents filed therewith and (B) during the
Prospectus Delivery
Period, as many copies of the Prospectus (including all amendments
and
supplements thereto) as the Lead Underwriters may reasonably
request. As used
herein, the term "PROSPECTUS DELIVERY PERIOD" means such period of
time after
the first date of the public offering of the Offered Certificates
as in the
opinion of counsel for the
8
Underwriters a prospectus relating to the Offered Certificates is
required by
law to be delivered in connection with sales of the Offered
Certificates by any
Underwriter or dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether
before or
after the time that the Registration Statement becomes effective,
the Depositor
will furnish to the Lead Underwriters and counsel for the
Underwriters a copy of
the proposed amendment or supplement for review and will not file
any such
proposed amendment or supplement to which the Lead Underwriters
reasonably
object.
(d) Notice to the Lead Underwriters. The Depositor will advise the
Lead Underwriters promptly, and confirm such advice in writing, (i)
when any
amendment to the Registration Statement has been filed or becomes
effective;
(ii) when any supplement to the Prospectus or any amendment to the
Prospectus
has been filed; (iii) of any request by the Commission for any
amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or the
receipt of any comments from the Commission relating to the
Registration
Statement or any other request by the Commission for any additional
information;
(iv) of the issuance by the Commission of any order suspending the
effectiveness
of the Registration Statement or preventing or suspending the use
of any
Preliminary Prospectus or the Prospectus or the initiation or
threatening of any
proceeding for that purpose; (v) of the occurrence of any event
within the
Prospectus Delivery Period as a result of which the Prospectus as
then amended
or supplemented would include any untrue statement of a material
fact or omit to
state a material fact necessary in order to make the statements
therein, in the
light of the circumstances existing when the Prospectus is
delivered to a
purchaser, not misleading, and (vi) of the receipt by the Depositor
of any
notice with respect to any suspension of the qualification of the
Offered
Certificates for offer and sale in any jurisdiction or the
initiation or
threatening of any proceeding for such purpose, and the Depositor
will use every
reasonable effort to prevent the issuance of any such order
suspending the
effectiveness of the Registration Statement, preventing or
suspending the use of
any Preliminary Prospectus or the Prospectus or suspending any such
qualification of the Offered Certificates and, if issued, will use
every
reasonable effort to obtain as soon as possible the withdrawal
thereof.
(e) Ongoing Compliance of the Prospectus. If during the Prospectus
Delivery Period (i) any event shall occur or condition shall exist
as a result
of which it is necessary to amend or supplement the Prospectus in
order to make
the statements therein, in the light of the circumstances existing
when the
Prospectus is delivered to a purchaser, not misleading, or (ii) it
is necessary
to amend or supplement the Prospectus to comply with law, the
Depositor will
immediately notify the Underwriters thereof and forthwith prepare
and, subject
to paragraph (c) above, file with the Commission and furnish to the
Underwriters
and to such dealers as the Lead Underwriters may designate, such
amendments or
supplements to the Prospectus as may be necessary so that the
statements in the
Prospectus as so amended or supplemented will not, in the light of
the
circumstances existing when the Prospectus is delivered to a
purchaser, be
misleading or so that the Prospectus will comply with law.
(f) Blue Sky Compliance. The Depositor will use reasonable efforts
in
cooperation with the Underwriters to qualify the Offered
Certificates for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as the Lead
Underwriters shall reasonably
9
request and will continue such qualifications in effect so long as
may be
reasonably required for distribution of the Offered Certificates,
provided that
the Depositor shall not be required to (i) qualify as a foreign
corporation or
other entity or as a dealer in securities in any such jurisdiction
where it
would not otherwise be required to so qualify; (ii) file any
general consent to
service of process in such jurisdiction; or (iii) subject itself to
taxation in
any such jurisdiction if it is not so subject.
(g) Earning Statement. The Depositor will make generally available
to
its security holders as soon as practicable an earning statement
that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158
of the
Commission promulgated thereunder covering a period of at least
twelve months
beginning with the first fiscal quarter of the Depositor occurring
after the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(h) Copies of Reports. So long as the Offered Certificates are
outstanding, the Depositor will furnish, or cause to be furnished,
to each
Underwriter (i) copies of each certificate, the annual statements
of compliance
and the annual independent certified public accountant's servicing
reports
furnished to the Trustee pursuant to the Pooling and Servicing
Agreement by
first class mail as soon as practicable after such statements and
reports are
furnished to the Trustee; (ii) copies of each amendment to any of
the Basic
Documents; and (iii) copies of all reports or other communications
(financial or
other) furnished to holders of the Offered Certificates, and copies
of any
reports and financial statements furnished to or filed with the
Commission, any
governmental or regulatory auth
