ML-CFC COMMERCIAL MORTGAGE TRUST 2006-3,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-3
UNDERWRITING AGREEMENT
September 22, 2006
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, 16th Floor
New York, New York 10080
Ladies and Gentlemen:
Merrill Lynch Mortgage Investors, Inc., a Delaware corporation (the
"Depositor"), proposes to cause the issuance of, and to sell to the
several
Underwriters listed on Schedule I (together, the "Underwriters"),
for whom
Merrill Lynch, Pierce, Fenner & Smith Incorporated is acting as
representative
(in such capacity, the "Representative"), the Commercial Mortgage
Pass-Through
Certificates identified in Schedule I hereto (the "Certificates")
pursuant to
this Underwriting Agreement, dated September 22, 2006 (this
"Agreement"),
between the Depositor and the Underwriters. 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
5.498% 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. PNC
Capital Markets LLC, Goldman, Sachs & Co. and Morgan Stanley
& Co. Incorporated
will act as co-managers. The Certificates will evidence beneficial
ownership
interests in a trust fund (the "Trust Fund") to be formed by the
Depositor and
consisting primarily of a segregated pool (the "Mortgage Pool") of
multifamily,
commercial and manufactured housing community mortgage loans (the
"Mortgage
Loans").
Certain of the Mortgage Loans (the "Merrill Mortgage Loans") will
be
acquired by the Depositor from Merrill Lynch Mortgage Lending, Inc.
("Merrill")
pursuant to the mortgage loan purchase agreement, dated September
22, 2006 (the
"Merrill Mortgage Loan Purchase Agreement") between the Depositor
and Merrill.
Certain of the Mortgage Loans (the "Countrywide Mortgage Loans")
will be
acquired by the Depositor from Countrywide Commercial Real Estate
Finance, Inc.
("Countrywide") pursuant to the mortgage loan purchase agreement,
dated
September 22, 2006 (the "Countrywide Mortgage Loan Purchase
Agreement") between
the Depositor and Countrywide. Certain of the Mortgage Loans (the
"PNC Mortgage
Loans") will be acquired by the Depositor from PNC Bank, National
Association
("PNC") pursuant to the mortgage loan purchase agreement, dated
September 22,
2006 (the "PNC Mortgage Loan Purchase Agreement") between the
Depositor and PNC.
Merrill, Countrywide and PNC collectively constitute the "Mortgage
Loan
Sellers"; and the Merrill Mortgage Loan Purchase Agreement, the
Countrywide
Mortgage Loan Purchase Agreement and the PNC 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 September 1, 2006 (the
"Pooling and
Servicing Agreement"), between the Depositor, as depositor, Midland
Loan
Services, Inc. and Capmark Finance Inc., as master servicers, ING
Clarion
Partners, LLC, as special servicer and LaSalle Bank National
Association, as
trustee.
Capitalized terms used herein, but not otherwise defined herein
shall have
the meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement (No. 333-130408) on Form S-3
for the
registration of the Certificates under the Securities Act of 1933,
as amended
(the "1933 Act"), which registration statement has become
effective. The
Depositor proposes to file with the Commission pursuant to Rule
424(b) under the
1933 Act a supplement to the form of prospectus included in such
registration
statement relating to the Certificates and the plan of distribution
thereof.
Such registration statement, including the exhibits thereto, and
information
that is contained in the Prospectus (as defined below) and is
deemed to be part
of and included in such registration statement as it may have been
amended or
supplemented at the date of the Prospectus, is hereinafter referred
to as the
"Registration Statement"; the prospectus first required to be filed
to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b)
under the
1933 Act, is hereinafter referred to as the "Base Prospectus"; such
supplement
to the Base Prospectus relating to the Certificates, in the form
first required
to be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to
Rule 424(b) under the 1933 Act (including the Base Prospectus as so
supplemented) is hereinafter referred to as the "Prospectus
Supplement"; and the
Base Prospectus and the Prospectus Supplement, together, are
hereinafter
referred to as the "Prospectus". A "free writing prospectus" (as
defined
pursuant to Rule 405 under the 1933 Act) relating to the
Certificates is
hereinafter referred to as a "Free Writing Prospectus".
At or prior to the time when sales to purchasers of the
Certificates were
first made, which was approximately 11:15 a.m. on September 22,
2006 (the "Time
of Sale"), the Depositor had prepared or caused the preparation of
the following
information (collectively, the "Time of Sale Information"); the
Depositor's Free
Writing Prospectus dated September 13, 2006 (the "Offering
Prospectus") (the
cover page of which is attached hereto as Annex A); the Depositor's
prospectus
dated September 13, 2006, relating to the Certificates and
previously filed as
part of the Registration Statement; a free writing prospectus
comprised of a
revised Annex A-1 to the Offering Prospectus dated September 15,
2006 (the
"September 15, 2006 Revised Annex A-1 Free Writing Prospectus")
(the first two
pages of which are attached as Annex B); the Preliminary Structural
and
Collateral Term Sheet dated September 13, 2006 relating to the
Certificates, as
modified and superseded by the Revised Preliminary Structural and
Collateral
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Term Sheet dated September 15, 2006, and a Structural Term Sheet
dated September
20, 2006 (the first two pages, each of which are attached as Annex
C hereto);
and the pricing information annex attached hereto as Schedule I.
If, subsequent
to the date of this Agreement, the Depositor and the Lead
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 one or more purchasers of the Certificates, then "Time of Sale
Information"
as to any such purchaser will refer to the information conveyed to
such
purchaser at the time of entry into the first such new purchase
contract,
including any information that corrects such material misstatements
or omissions
("Corrective Information") and "Time of Sale" as to such purchaser
will refer to
the time and date on which such new purchase contract was entered
into.
1.
Representations and Warranties.
(a)
The Depositor represents and warrants to the Underwriters as
follows:
(i)
The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect,
and no proceedings for such purpose are pending or, to the
Depositor's
knowledge, threatened by the Commission; the Registration Statement
as of its
effective date or deemed effective date pursuant to Rule 430B under
the 1933 Act
(the "Effective Date"), and the Prospectus, as of the date of the
Prospectus
Supplement, complied in all material respects with the applicable
requirements
of the 1933 Act and the rules and regulations thereunder (the "1933
Act
Regulations"); and the information in the Registration Statement,
as of the
Effective Date, did not contain any untrue statement of a material
fact and did
not omit to state any material fact required to be stated therein
or necessary
to make the statements therein not misleading, and the information
in the
Prospectus, as of the date of the Prospectus Supplement, did not,
and as of the
Closing Date (as hereinafter defined) will not, contain an untrue
statement of a
material fact and did not and will not omit to state a material
fact necessary
in order to make the information therein, in the light of the
circumstances
under which they were made, not misleading; provided, however, that
the
Depositor makes no representations, warranties or agreements as to
(A) the
information furnished in writing to the Depositor by the
Underwriters through
the Lead Underwriters specifically for use in connection with the
preparation of
the Time of Sale Information and the Prospectus or any revision or
amendment
thereof or supplement thereto and other information in conformity
therewith and
in reliance thereon (the "Underwriter Information"), (B) any
information for
which the Mortgage Loan Sellers are obligated to indemnify the
Underwriters
under the Indemnification Agreements, each dated as of September
22, 2006,
between the respective Mortgage Loan Seller, the Depositor and the
Underwriters
(the "Mortgage Loan Seller Information") or (C) any information for
which the
Trustee, either of the Master Servicers or the Special Servicer is
obligated to
indemnify the Underwriters, each under separate indemnification
agreements dated
as of September 22, 2006 (the "Trustee/Servicer Information"); and
provided,
further, that the Depositor makes no representations, warranties or
agreements
regarding untrue statements or omissions in the portions of the
Prospectus
Supplement under the heading "Yield and Maturity Considerations"
that arise out
of or are based upon untrue statements or omissions in the Mortgage
Loan Seller
Information. The Underwriter Information in the Time of Sale
Information and the
Prospectus Supplement shall consist of: (i) the first three
sentences of the
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paragraph immediately above the bolded names of the Underwriters on
the cover
page of the Offering Prospectus and the Prospectus Supplement,
respectively; and
(ii) the second, fourth and eighth paragraphs and the first
sentence of the
sixth paragraph of the section of the Offering Prospectus and the
Prospectus
Supplement, respectively, entitled "Method of Distribution".
(ii)
The Time of Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of a
material
fact or omit to state a material fact necessary in order to make
the statements
therein, in the light of the circumstances under which they were
made, not
misleading; provided that the Depositor makes no representation and
warranty
with respect to (A) any Underwriter Information contained in or
omitted from the
Time of Sale Information and/or any information that is consistent
with such
Underwriter Information, (B) any Mortgage Loan Seller Information
contained in
or omitted from such Time of Sale Information or (C) any
Trustee/Servicer
Information contained in or omitted from such Time of Sale
Information. The
parties acknowledge that none of the Underwriters has furnished any
Underwriter
Information to the Depositor expressly for use in the Time of Sale
Information
(other than the Offering Prospectus).
(iii)
The Depositor (including its agents and representatives
other than the Underwriters in their capacity as such) has not
made, used,
prepared, authorized, approved or referred to and will not make,
use, prepare,
authorize, approve or refer to any "written communication" (as
defined in Rule
405 under the 1933 Act) that constitutes an offer to sell or
solicitation of an
offer to buy the Certificates other than (i) the Prospectus, (ii)
any document
not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the 1933 Act or
Rule 134 under the 1933 Act, (iii) the Time of Sale Information,
and (iv) each
other written communication of the Depositor or its agents and
representatives
approved by the Representative either in writing in advance or in
any other
manner mutually agreed to by the Representative and the Depositor
(each such
communication referred to in clause (iii) and this clause (iv)
constituting an
"issuer free writing prospectus", as defined in Rule 433(h) under
the 1933 Act,
being referred to as an "Issuer Free Writing Prospectus"). Each
such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will
comply, in
all material respects with the 1933 Act and the rules and
regulations
promulgated thereunder, has been filed or will be filed in
accordance with
Section 4 (to the extent required thereby). Each such Issuer Free
Writing
Prospectus referred to in clause (iv) of the second preceding
sentence did not
at the Time of Sale, and at the Closing Date will not, contain any
untrue
statements of a material fact or (when read in conjunction with the
Time of Sale
Information) omit to state a material fact necessary in order to
make the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that the Depositor makes no
representation and
warranty with respect to (i) any Underwriter Information contained
in or omitted
from the Prospectus or the Time of Sale Information and/or any
information that
is consistent with such Underwriter Information, (ii) any Mortgage
Loan Seller
Information contained in or omitted from any such Issuer Free
Writing Prospectus
or (iii) any Trustee/Servicer Information contained in or omitted
from any such
Issuer Free Writing Prospectus. The parties acknowledge that none
of the
Underwriters has furnished any Underwriter Information to the
Depositor
expressly for use in any Issuer Free Writing Prospectus referred to
in clause
(iv) of the third preceding sentence.
(iv)
The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of
Delaware, is qualified to do business
4
and is in good standing as a foreign entity in each jurisdiction in
which the
conduct of its business requires such qualification, with corporate
power and
authority to enter into and perform its obligations under this
Agreement, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements.
(v)
The execution, delivery and performance of this Agreement,
the Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements 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, the Pooling and Servicing
Agreement or the
Mortgage Loan Purchase Agreements.
(vi)
The Certificates have been duly authorized for issuance and
sale (or will have been so authorized prior to the issuance
thereof) pursuant to
this Agreement and the Pooling and Servicing Agreement. When
issued,
authenticated and delivered pursuant to the provisions of this
Agreement and of
the Pooling and Servicing Agreement against payment of the
consideration
therefor in accordance with this Agreement, the Certificates will
be duly and
validly issued and outstanding and entitled to the benefits
provided by the
Pooling and Servicing Agreement, except as the enforceability
thereof may be
limited by the effect of (A) bankruptcy, insolvency,
reorganization,
receivership, moratorium or other similar laws affecting the
enforcement of the
rights of creditors generally, and (B) general principles of
equity, whether
enforcement is sought in a proceeding in equity or at law. The
Certificates, the
Pooling and Servicing Agreement and the Mortgage Loan Purchase
Agreements
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 and the Mortgage Loan Purchase
Agreements
that have not yet been completed.
(viii)
This Agreement and the Mortgage Loan Purchase Agreements
have been, and as of the Closing Date the Pooling and Servicing
Agreement will
be, duly authorized, executed and delivered by the Depositor. This
Agreement and
the Mortgage Loan Purchase Agreements constitute, and as of the
Closing Date the
Pooling and Servicing Agreement will constitute, a legal, valid and
binding
agreement enforceable against the Depositor in accordance with its
terms, except
as such enforceability may be limited by the effect of (A)
bankruptcy,
5
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 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
6
Agreement in their entirety; and (iv) it has obtained such legal,
tax,
accounting and other advice as it deems appropriate with respect to
this
Agreement and the transactions contemplated hereby and any other
activities
undertaken in connection therewith, and it is not relying on the
Underwriters
with respect to any such matters.
(xiii)
The Trust Fund (other than those portions specified in the
Pooling and Servicing Agreement) will qualify as two separate real
estate
mortgage investment conduits (each, a "REMIC") for federal income
tax purposes
pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the
"Code"); the Regular Certificates will constitute "regular
interests" in a
REMIC; and the Class R-I and R-II Certificates will evidence the
sole class of
"residual interests" in each related REMIC.
(xiv)
There are no legal or governmental proceedings pending or,
to the knowledge of the Depositor, threatened to which the
Depositor is a party
or to which any of the properties of the Depositor are subject that
are required
to be described in the Prospectus or the Time of Sale Information
or necessary
in order to make the statements therein in the light of the
circumstances under
which they were made, not misleading and that are not so described,
nor are
there any contracts or other documents to which the Depositor is a
party or to
which the Depositor or any of the properties of the Depositor are
subject that
are required to be described in the Prospectus.
(xv)
At the Closing Date, the respective classes of Certificates
shall have been assigned ratings no lower than those set forth in
Schedule I
hereto by the nationally recognized statistical rating
organizations identified
in Schedule I hereto (the "Rating Agencies").
(xvi)
Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
Pooling and
Servicing Agreement and the Certificates payable by the Depositor
(other than
income taxes) have been paid or will be paid at or prior to the
Closing Date.
(xvii)
None of the Depositor or any of its affiliates does business
with the government of Cuba or with any person or affiliate located
in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first
bona fide offer of the Certificates is made (within the meaning of
Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer,"
as defined in
Rule 405 under the 1933 Act.
(xix)
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.
(xx)
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
7
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, 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.
(b)
Each Underwriter represents and warrants to the Depositor
that, as of the date hereof and as of the Closing Date, such
Underwriter has
complied with all of its obligations hereunder.
2.
Purchase and Sale.
Subject to the terms and conditions herein set forth and in
reliance upon
the representations and warranties herein contained, the Depositor
shall sell to
the Underwriters, and each Underwriter shall, severally and not
jointly,
purchase from the Depositor, at the related purchase price set
forth on Schedule
I hereto, Certificates of each class thereof having an actual or
notional amount
as set forth on Schedule I hereto opposite their names plus, if
applicable,
accrued interest on the actual principal amount or notional amount
thereof at
the applicable Pass-Through Rate from September 1, 2006 to but
excluding the
Closing Date (defined below).
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
September 29,
2006, which date and time may be postponed by agreement between the
Underwriters
and the Depositor (such time and date of payment and delivery, the
"Closing
Date"). Payment shall be made to the Depositor by the Underwriters
of the
purchase prices of the Certificates as set forth in Schedule I
(together with
the interest accrued thereon as contemplated by Section 2 hereof)
in immediately
available Federal funds wired to such bank as may be designated by
the
Depositor, against delivery of the Certificates. Delivery of the
Certificates
will be made in book-entry form through the facilities of The
Depository Trust
Company ("DTC"). Each class of Certificates will be represented by
one or more
definitive global Certificates to be deposited by or on behalf of
the Depositor
with DTC or the Trustee. The Certificates will be made available
for examination
by the Underwriters not later than 10:00 a.m. New York City time on
the last
business day prior to the Closing Date. The closing of the
transactions
contemplated hereby shall be made at the offices of Sidley Austin
LLP, 787
Seventh Avenue, New York, New York 10019, 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
8
Underwriter in and from the State of New York will be made only to
institutional
investors within the meaning of Policy Statement 105.
(b)
In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors
Free Writing
Prospectuses, or portions thereof, subject to the following
conditions (to which
such conditions each Underwriter agrees (provided that no
Underwriter shall be
responsible for any breach of the following conditions by any other
Underwriter)):
(i)
Unless preceded or accompanied by the Prospectus,
the Underwriters shall not convey or deliver, and hereby represent
that
they have not conveyed or delivered, any written communication to
any
person in connection with the initial offering of the Certificates,
unless
such written communication (1) is made in reliance on Rule 134
under the
1933 Act, (2) constitutes a prospectus satisfying the requirements
of Rule
430B under the 1933 Act, or (3) constitutes Time of Sale
Information or a
Free Writing Prospectus that does not constitute (but is in all
material
respects consistent with) Time of Sale Information. The
Underwriters shall
not convey or deliver in connection with the initial offering of
the
Certificates any "computational materials" or "ABS term sheets" in
reliance on the "Kidder/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, and hereby
represents and warrants that it has delivered, to the Depositor, no
later
than two business days prior to the date of first use thereof or
such
later date as may be agreed to by the Depositor, (a) any Free
Writing
Prospectus that was prepared by or on behalf of such Underwriter
(an
"Underwriter Free Writing Prospectus") and that contains or
contained any
"issuer information," as defined in Rule 433(h) under the 1933 Act
and
footnote 271 of the Commission's Securities Offering Reform Release
No.
33-8591 ("Issuer Information") (which the parties hereto agree
includes,
without limitation, Mortgage Loan Seller Information), and (b) any
Free
Writing Prospectus or portion thereof prepared by or on behalf of
such
Underwriter that contains or contained only a description of the
final
terms of the Certificates, provided that an Underwriter shall not
be
required to deliver to the Depositor any Bloomberg screen email
transmission that constitutes a Free Writing Prospectus that was
delivered
to an investor pursuant to the foregoing provision, unless such
Free
Writing Prospectus contains information that is not included in a
prospectus or Free Writing Prospectus previously filed that relates
to the
offering of the Certificates in which case such Underwriter must
deliver a
copy thereof to the Depositor on the same date as delivery to the
investor. 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.
9
(iii)
Each Underwriter represents and warrants to the
Depositor that the Free Writing Prospectuses furnished or to be
furnished
to the Depositor by such Underwriter pursuant to or as contemplated
by
Section 4(b)(ii) will constitute all Free Writing Prospectuses of
the type
described therein that were furnished to prospective investors by
such
Underwriter in connection with its offer and sale of the
Certificates.
(iv)
Each Underwriter represents and warrants to the
Depositor that each Free Writing Prospectus provided or required to
be
provided by it to the Depositor pursuant to or as contemplated by
Section
4(b)(ii) did not, as of the Time of Sale, and will not as of the
Closing
Date, include any untrue statement of a material fact or omit any
material
fact necessary to make the statements contained therein (when read
in
conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided
however, that such Underwriter makes no representation to the
extent such
misstatements or omissions were the result of any inaccurate Issuer
Information, which information was not corrected by Corrective
Information
subsequently supplied by the Depositor or any Mortgage Loan Seller
to such
Underwriter within a reasonable period of time prior to the Time of
Sale.
(v)
The Depositor agrees to file with the Commission the
following:
(A)
Any Issuer Free Writing Prospectus;
(B)
Any Free Writing Prospectus or portion thereof
delivered by any Underwriter to the Depositor pursuant to Section
4(b)(ii); and
(C)
Any Free Writing Prospectus for which the
Depositor or any person (exclusive of an Underwriter) acting on its
behalf provided, authorized or approved information that is
prepared
and published or disseminated by a person unaffiliated with the
Depositor or any other offering participant that is in 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,
10
(vi)
Any Free Writing Prospectus required to be filed
pursuant to Section 4(b)(v) by the Depositor shall be filed with
the
Commission not later than the date of first use of the Free Writing
Prospectus, except that (subject to compliance by the Underwriters
with
Section 4(b)(ii) hereof in cases where an Underwriter must deliver
the
subject Free Writing Prospectus or portion thereof to the
Depositor):
(A)
Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final
terms of the Certificates shall be filed by the Depositor with the
Commission within two days of the later of the date such final
terms
have been established for all classes of Certificates and the date
of first use;
(B)
Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Depositor with the
Commission not later than the later of the due date for filing the
final Prospectus relating to the Certificates pursuant to Rule
424(b) under the 1933 Act or two business days after the first use
of such Free Writing Prospectus; and
(C)
Any Free Writing Prospectus required to be
filed pursuant to Section 4(b)(v)(C) shall, if no payment has been
made or consideration has been given by or on behalf of the
Depositor for the Free Writing Prospectus or its dissemination, be
filed by the Depositor with the Commission not later than four
business days after the Depositor becomes aware of the publication,
radio or television broadcast or other dissemination of the Free
Writing Prospectus.
(vii)
Each Underwriter shall file with the Commission any
Free Writing Prospectus that is used or referred to by it and
distributed
by or on behalf of such 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
11
included in a prospectus or Free Writing Prospectus previously
filed that
relates to the offering of the Certificates.
(x)
The Depositor and the Underwriters each agree that
any Free Writing Prospectuses prepared by it shall contain the
following
legend, or substantially equivalent legend that complies with Rule
433 of
the 1933 Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete
information about the depositor, the issuing entity, and this
offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. 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 1-866-718-1649.
(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.
12
(C)
The Underwriters shall, if requested by the
Depositor:
(1)
if the Defective Free Writing Prospectus
was an Underwriter Free Writing Prospectus, prepare a Free
Writing Prospectus that corrects the material misstatement in
or omission from the Defective Free Writing Prospectus
(together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(2)
deliver the Corrected Free Writing
Prospectus to each investor which received the Defective Free
Writing Prospectus prior to entering into a contract of sale
with such investor;
(3)
notify such investor in a prominent
fashion that the prior contract of sale with the investor has
been terminated, and of the investor's rights as a result of
termination of such agreement;
(4)
provide such investor with an
opportunity to affirmatively agree to purchase the
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5)
comply with any other requirements for
reformation of the original contract of sale with such
investor, as described in Section IV.A.2.c of Commission's
Securities Offering Reform Release No. 33-8591.
(D)
If the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus, and the Underwriters shall
in
good faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the
Depositor
agrees to reimburse the Underwriters for such costs; provided that,
before incurring such costs, the Underwriters first permit the
Depositor access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xiii)
Each Underwriter covenants with the Depositor that
after the Prospectus is available such Underwriter shall not
distribute
any written information concerning the Certificates to a
prospective
investor unless such information is preceded or accompanied by the
Prospectus other than any Bloomberg screen email transmission that
constitutes a Free Writing Prospectus that is subject to the
proviso in
Section 4(b)(ii).
(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 Act 2000 does not apply to the
Depositor; and
13
(ii)
it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 with
respect to
anything done by it in relation to the certificates in, from or
otherwise
involving the United Kingdom.
(iii)
In relation to each Member State of the European Economic
Area which has implemented the Prospectus Directive (each, a
"Relevant Member
State"), each Underwriter represents and agrees with the Depositor
that with
effect from and including the date on which the Prospectus
Directive is
implemented in that Relevant Member State (the "Relevant
Implementation Date")
such Underwriter has not made and will not make an offer of the
Certificates to
the public in that Relevant Member State prior to the publication
of a
prospectus in relation to the Certificates which has been approved
by the
competent authority in that Relevant Member State or, where
appropriate,
approved in another Relevant Member State and notified to the
competent
authority in that Relevant Member State, all in accordance with the
Prospectus
Directive, except that such Underwriter may, with effect from and
including the
Relevant Implementation Date, make an offer of the Certificates to
the public in
that Relevant Member State at any time:
(A)
to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized or
regulated,
whose corporate purpose is solely to invest in securities;
(B)
to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual
net
turnover of more than (euro)50,000,000, as shown in its last annual
or
consolidated accounts; or
(C)
in any other circumstances which do not require the
publication by the Depositor of a prospectus pursuant to Article 3
of the
Prospectus Directive.
For the purposes of this provision, the expression an "offer of the
Certificates to the public" in relation to any of the Certificates
in any
Relevant Member State means the communication in any form and by
any means of
sufficient information on the terms of the offer and the
Certificates to be
offered so as to enable an investor to decide to purchase or
subscribe the
Certificates, as the same may be varied in that Member State by any
measure
implementing the Prospectus Directive in that Member State and the
expression
"Prospectus Directive" means Directive 2003/71/EC and includes any
relevant
implementing measure in each Relevant Member State.
(d)
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.
14
5.
Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(a)
The Depositor will give each of the Underwriters notice of
its intention to prepare, use, authorize, approve, refer to or file
any Issuer
Free Writing Prospectus or to file or prepare (i) any amendment to
the
Registration Statement at any time prior to the Closing Date or
(ii) any
amendment or supplement to the Prospectus (including any revised
prospectus that
the Depositor proposes for use by the Underwriters in connection
with the
offering of the Certificates and that differs from the prospectus
on file at the
Commission at the time the Registration Statement became effective,
whether or
not such revised prospectus is required to be filed pursuant to
Rule 424(b) of
the 1933 Act Regulations) at any time during the period when a
prospectus
relating to the Certificates is required to be delivered under the
1933 Act, and
the Depositor will furnish the Underwriters with copies of any such
Issuer Free
Writing Prospectus, amendment or supplement a reasonable amount of
time prior to
such proposed filing or use, as the case may be, and will not
prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or
file any such amendment or supplement or use any such prospectus to
which the
Underwriters shall reasonably object.
(b)
The Depositor will promptly give the Lead Underwriters
notice of (i) any request by the Commission for any amendment of
the
Registration Statement or the Prospectus or for any additional
information
relating to the Certificates, (ii) any written notification
received by the
Depositor of suspension of qualification of the Certificates for
sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose
and (iii) the issuance by the Commission of any stop order
suspending the
effectiveness of the Registration Statement or the institution or,
to the
knowledge of the Depositor, threatening any proceeding for that
purpose. The
Depositor will use its best efforts to prevent the issuance of any
such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(c)
The Depositor will cause the Prospectus to be transmitted
to the Commission for filing pursuant to Rule 424(b) under the 1933
Act by means
reasonably calculated to result in filing with the Commission
pursuant to said
rule. Subject to Section 4, the Depositor will cause each Issuer
Free Writing
Prospectus to be transmitted for filing pursuant to Rule 433 under
the 1933 Act
by means reasonably calculated to result in filing with the
Commission pursuant
to said rule.
(d)
The Depositor will furnish to the Lead Underwriters, from
time to time during the period when a prospectus relating to the
Certificates is
required to be delivered under the 1933 Act, such number of copies
of the
Prospectus and each Free Writing Prospectus (as amended or
supplemented) as the
Lead Underwriters may reasonably request for the purposes
contemplated by the
1933 Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act") or
the respective applicable rules and regulations of the Commission
thereunder.
(e)
If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the
Certificates
is required to be delivered under the 1933 Act, any event shall
occur as a
result of which it is necessary to amend or supplement the
Prospectus in order
to make the Prospectus not misleading in the light of the
circumstances
15
existing at the time it is delivered to a purchaser of
Certificates, if the
Depositor has actual knowledge of the event, and if the event is
not otherwise
disclosed in a filing to the Registration Statement pursuant to
Section 13 or
15(d) of the 1934 Act, the Depositor will forthwith amend or
supplement the
Prospectus so that, as so amended or supplemented, the Prospectus
will not
include an untrue statement of a material fact or omit to state a
material fact
necessary in order to make the statements therein, in the light of
the
circumstances existing at the time it is delivered to a purchaser,
not
misleading, and the Depositor will furnish to the Lead Underwriters
a reasonable
number of copies of such amendment or supplement.
(f)
The Depositor will endeavor to arrange for the qualification
of the Certificates for sale under the applicable securities laws
of such states
and other jurisdictions of the United States as the Lead
Underwriters may
reasonably designate and will maintain such qualification in effect
so long as
required for the initial distribution of Certificates; provided,
however, that
the Depositor shall not be obligated to qualify as a foreign
corporation in any
jurisdiction in which it is not so qualified or to file a general
consent to
service of process in any jurisdiction.
(g)
The Depositor will use the net proceeds received by it from
the sale of the Certificates in the manner specified in the
Prospectus under
"Use of Proceeds".
(h)
Whether or not the transactions contemplated by this
Agreement are consummated, the Depositor will pay or cause to be
paid all
expenses incident to the performance of the obligations of the
Depositor under
this Agreement, including, without limitation, (i) the fees,
disbursements and
expenses of the Depositor's counsel and accountants in connection
with the
purchase of the Mortgage Loans and the issuance and sale of the
Certificates,
(ii) all fees and expenses incurred in connection with the
registration and
delivery of the Certificates under the 1933 Act, and all other fees
or expenses
in connection with the preparation and filing of the Registration
Statement, the
Time of Sale Information, any Issuer Free Writing Prospectus, the
Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs
associated therewith, and the mailing and delivering of copies
thereof to the
Underwriters and dealers, in the quantities specified above, (iii)
all costs and
expenses related to the transfer and delivery of the Certificates
to the
Underwriters, including any transfer or other taxes payable
thereon, (iv) the
costs of printing or producing any "blue sky" memorandum in
connection with the
offer and sale of the Certificates under state securities laws and
all expenses
in connection with the qualification of the Certificates for the
offer and sale
under state securities laws as provided in Section 5(f), including
filing fees
and the reasonable fees and disbursements of counsel for the Lead
Underwriters
in connection with such qualification and in connection with the
"blue sky"
memorandum, (v) the cost of printing the 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.
16
(i)
The Depositor shall obtain a letter from Ernst & Young LLP,
certified public accountants, satisfactory in form and substance to
the
Depositor and the Lead Underwriters, to the effect that such
accountants have
performed certain specified procedures, all of which have been
agreed to by the
Depositor and the Lead Underwriters, as a result of which they have
determined
that the information included in the Time of Sale Information that
the
accountants have examined in accordance with such agreed upon
procedures, is
accurate except as to such matters that are not deemed by the
Depositor or the
Lead Underwriters to be material.
6.
Conditions of Underwriters' Obligations.
Each Underwriter's obligation to purchase the Certificates
allocated to it
as set forth on Schedule I hereto shall be subject to the accuracy
in all
material respects of the representations and warranties on the part
of the
Depositor contained herein as of the date hereof and as of the
Closing Date, to
the performance by the Depositor in all material respects of its
obligations
hereunder and to the following conditions:
(a)
No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
that purpose
shall be pending or, to the Depositor's knowledge, threatened by
the Commission
and the Prospectus Supplement and each Free Writing Prospectus
required to be
filed by the Depositor pursuant to Section 4(b) shall have been
filed or
transmitted for filing by means reasonably calculated to result in
a filing with
the Commission pursuant to Rule 424(b) under the 1933 Act or Rule
433 under the
1933 Act, as applicable.
(b)
On the Closing Date, the Lead Underwriters shall have
received:
(i)
One or more opinions, dated the Closing Date and
addressed to the Underwriters, of counsel to the Depositor, in form
and
substance satisfactory to such Lead Underwriters, substantially to
the
effect that:
(A)
The Depositor is a corporation in good
standing under the laws of the State of Delaware.
(B)
The Depositor has corporate power and
authority to enter into and perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Mortgage
Loan
Purchase Agreements.
(C)
Each of this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreements have
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 and the Mortgage Loan
Purchase Agreements 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
17
equity or at law and (3) such other exceptions as are reasonably
acceptable to the Lead Underwriters.
(D)
The Certificates, when duly and validly
executed, authenticated and delivered in accordance with the
Pooling
and Servicing Agreement and paid for in accordance with this
Agreement, will be entitled to the benefits of the Pooling and
Servicing Agreement.
(E)
The Registration Statement was declared
effective under the 1933 Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the 1933 Act and not withdrawn, and no proceedings for that purpose
have been initiated or threatened by the Commission.
(F)
At the time it was declared effective under
the 1933 Act, the Registration Statement (other than any financial,
numerical, accounting or statistical information included or
incorporated by reference therein, as to which no opinion need be
rendered) complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(G)
To such counsel's knowledge and information,
there are no material contracts, indentures, or other documents of
the Depositor required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto or that may be filed subsequently to
the Closing Date pursuant to a Current Report on Form 8-K.
(H)
The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the issuance and sale of the Certificates in the
manner
contemplated by the Prospectus will not cause the Trust Fund to be
subject to registration or regulation as an "investment company"
under the Investment Company Act of 1940, as amended.
(I)
No consent, approval, authorization, or order
of any State of New York or federal court or governmental agency or
body is required for the consummation by the Depositor of the
transactions contemplated herein, except (1) such as have been
obtained, (2) such as may be required under the blue sky laws of
any
jurisdiction in connection with the purchase and sale of the
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, the
Pooling and Servicing Agreement or the Mortgage Loan Purchase
Agreements, will conflict with or result in a breach or violation
of
18
any term or provision of, or constitute a default (or an event
which
with the passing of time or notification or both, would constitute
a
default) under, (1) the certificate of incorporation or by-laws of
the Depositor or, (2) to the knowledge of such counsel, any
material
indenture, agreement or instrument to which the Depositor is a
party
or by which it is bound or, (3) any State of New York or federal
statute or regulation applicable to the Depositor or, (4) to the
knowledge of such counsel, any order of any New York or federal
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Depositor except, in the case of
either
(2) or (4), for any conflict, breach, violation or default that, in
the judgment of such counsel, is not reasonably likely to
materially
and adversely affect the Depositor's ability to perform its
obligations under this Agreement or the Pooling and Servicing
Agreement.
(ii)
An opinion, dated the Closing Date and addressed to
the Underwriters, of counsel to the Underwriters, reasonably
acceptable to
the Underwriters.
(iii)
In giving their opinions required by the foregoing
subsections (i) and (ii) of this Section, counsel to the Depositor
and the
Underwriters, respectively, shall in each case additionally state
that
nothing has come to such counsel's attention that has caused it to
believe
that (i), in the case of counsel to the Depositor, the Registration
Statement, the Prospectus or the Time of Sale Information, and (ii)
in the
case of counsel to the Underwriters, the Prospectus or the Time of
Sale
Information (in each case other than any financial statements and
supporting schedules and numerical, statistical and/or accounting
information included therein, as to which no statement need be
made), in
the case of the Registration Statement, as of the time it was
declared
effective under the 1933 Act, in the case of the Prospectus, as of
the
date thereof or as of the Closing Date, and as of the Time of Sale,
in the
case of the Time of Sale Information, contained an untrue statement
of a
material fact or omitted to state a material fact necessary to make
the
statements therein, in the light of the circumstances under which
they
were made, not misleading. Such statement shall be based upon
conferences
and telephone conversations with representatives of the parties
hereto,
the Mortgage Loan Sellers, the Master Servicers, the Special
Servicer and
the Trustee and such statement may be qualified that, with limited
exception, such counsel will not have reviewed any loan documents.
Such
counsel may exclude from such opinion those sections of the
Prospectus and
Time of Sale Information that constitute Mortgage Loan Seller
Information
and Trustee/Servicer Information.
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
