Exhibit 1.1
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES __________
UNDERWRITING AGREEMENT
----------------------
_____________, 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, 15th
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"),
the
Commercial Mortgage Pass-Through Certificates identified in
Schedule I hereto
(the "Certificates") pursuant to this Underwriting Agreement,
dated
______________, 2006 (this "Agreement"), between the Depositor and
the
Underwriters. The Certificates will evidence beneficial ownership
interests in
a trust fund (the "Trust Fund") to be formed by the Depositor and
consisting
primarily of a segregated pool (the "Mortgage Pool") of multifamily
and
commercial mortgage loans (the "Mortgage Loans").
Certain of the Mortgage Loans (the "________ Mortgage Loans") will
be
acquired by the Depositor from [Loan Seller] ("________") pursuant
to the
mortgage loan purchase agreement, dated _____________, 2006 (the
"________
Mortgage Loan Purchase Agreement") between the Depositor and
________. Certain
of the Mortgage Loans (the "________ Mortgage Loans") will be
acquired by the
Depositor from _________________ ("________") pursuant to the
mortgage loan
purchase agreement, dated ___________, 2006 (the "________ Mortgage
Loan
Purchase Agreement") between the Depositor and________. Certain of
the
Mortgage Loans (the "________ Mortgage Loans") will be acquired by
the
Depositor from [Loan Seller] ("________") pursuant to the mortgage
loan
purchase agreement, dated _____________, 2006 (the "________
Mortgage Loan
Purchase Agreement"), between the Depositor and ________. ________,
________
and ________ collectively constitute the "Mortgage Loan Sellers";
and the
________ ___ Mortgage Loan Purchase Agreement and the ________
Mortgage Loan
Purchase Agreement collectively constitute the "Mortgage Loan
Purchase
Agreements."
The Trust is to be created and the Certificates are to be
issued
under a pooling and servicing agreement, dated as of _____________,
2006 (the
"Pooling and Servicing Agreement"), between the Depositor, as
depositor,
________________, as master servicer,
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_____________________, as special servicer, ______________________,
as trustee
and _____________________, as paying agent and certificate
registrar.
Capitalized terms used herein, but not otherwise defined herein
shall
have the meanings set forth in the Mortgage Loan Purchase
Agreements.
The Depositor has filed with the Securities and Exchange
Commission
(the "Commission") a registration statement (No. 333-_________) on
Form S-3
for the registration of the Certificates under the Securities Act
of 1933, as
amended (the "1933 Act"), which registration statement has become
effective.
The Depositor proposes to file with the Commission pursuant to Rule
424(b)
under the 1933 Act a supplement to the form of prospectus included
in such
registration statement relating to the Certificates and the plan
of
distribution thereof. Such registration statement, including the
exhibits
thereto, and information that is contained in the Prospectus (as
defined
below) and is deemed to be part of and included in such
registration statement
as it may have been amended or supplemented at the date of the
Prospectus, is
hereinafter referred to as the "Registration Statement"; the
prospectus first
required to be filed to satisfy the condition set forth in Rule
172(c) and
pursuant to Rule 424(b) under the 1933 Act, is hereinafter referred
to as the
"Base Prospectus"; such form of supplement to the Base Prospectus
relating to
the Certificates, in the form first required to be filed to satisfy
the
condition set forth in Rule 172(c) and pursuant to Rule 424(b)
under the 1933
Act (including the Base Prospectus as so supplemented) is
hereinafter referred
to as the "Prospectus Supplement"; and the Base Prospectus and the
Prospectus
Supplement, together, are hereinafter referred to as the
"Prospectus".
At or prior to the time when sales to purchasers of the
Certificates
were first made, which was approximately 1:30 p.m. on ___________,
2006 (the
"Time of Sale"), the Depositor had prepared the following
information
(collectively, the "Time of Sale Information"): the Depositor's
Free Writing
Prospectus dated __________, 2006 (the cover page of which is
attached hereto
as Annex A) to accompany the Depositor's Prospectus dated
__________, 2005,
and the Depositor's Prospectus dated __________, 2005, the Term
Sheet dated
___________, 2006, relating to the Certificates, each
"free-writing
prospectus" (as defined pursuant to Rule 405 under the 1933 Act) (a
"Free
Writing Prospectus") the first page of each of which is attached as
Annex B
hereto and the pricing information annex attached hereto as Annex
C. If,
subsequent to the date of this Agreement, the Depositor and the
Underwriters
determine that such information included an untrue statement of
material fact
or omitted to state a material fact necessary in order to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading and terminate their old purchase contracts and enter
into new
purchase contracts with purchasers of the Certificates, then "Time
of Sale
Information" will refer to the information conveyed to purchasers
at the time
of entry into the first such new purchase contract, including any
information
that corrects such material misstatements or omissions
("Corrective
Information") and "Time of Sale" will refer to the time and date on
which such
new purchase contracts were entered into.
1.
Representations and Warranties.
(a) The Depositor
represents and warrants to the
Underwriters as
follows:
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(i) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect,
and no proceedings for such purpose are pending or, to the
Depositor's
knowledge, threatened by the Commission; the Registration Statement
as of its
effective date or deemed effective date pursuant to Rule 430B under
the 1933
Act (the "Effective Date"), and the Prospectus, as of the date of
the
Prospectus Supplement, complied in all material respects with the
applicable
requirements of the 1933 Act and the rules and regulations
thereunder (the
"1933 Act Regulations"); and the information in the Registration
Statement, as
of the Effective Date, did not contain any untrue statement of a
material fact
and did not omit to state any material fact required to be stated
therein or
necessary to make the statements therein not misleading and the
information in
the Prospectus, as of the date of the Prospectus Supplement, did
not, and as
of the Closing Date (as hereinafter defined) will not, contain an
untrue
statement of a material fact and did not and will not omit to state
a material
fact necessary in order to make the information therein, in the
light of the
circumstances under which they were made, not misleading, provided,
however,
that the Depositor makes no representations, warranties or
agreements as to
(A) the information contained in the Prospectus or any revision or
amendment
thereof or supplement thereto in reliance upon and in conformity
with
information furnished in writing to the Depositor by any
Underwriter on behalf
of itself or the other Underwriters specifically for use in
connection with
the preparation of the Prospectus or any revision or amendment
thereof or
supplement thereto (the "Underwriter Information"), or (B) any
information
contained in or omitted from the portions of the Prospectus
Supplement for
which the Mortgage Loan Sellers are obligated to indemnify the
Underwriters
under the Indemnification Agreements, each dated as of _________,
2006,
between the respective Mortgage Loan Seller, the Depositor and
the
Underwriters (the "Mortgage Loan Seller Information") and provided,
further,
that the Depositor makes no representations or warranties regarding
untrue
statements or omissions in the portions of the Prospectus
Supplement under the
heading "Yield, Prepayment and Maturity Considerations" that arise
out of or
are based upon untrue statements or omissions in the Mortgage Loan
Seller
Information. The Underwriter Information shall consist of the
second, fourth
and ninth paragraphs of the section of the Prospectus Supplement
entitled
"Plan of Distribution" and the first two sentences of the last
paragraph on
the cover page of the Prospectus Supplement.
(ii) The Time of Sale Information, at the Time of Sale, did
not, and at the Closing Date will not, contain any untrue statement
of a
material fact or omit to state a material fact necessary in order
to make the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that the Depositor makes no
representation and
warranty with respect to (A) any statements or omissions made in
reliance upon
and in conformity with the Underwriter Information or (B) any
Mortgage Loan
Seller Information contained in or omitted from such Time of Sale
Information.
The parties acknowledge that none of the Underwriters has furnished
any
Underwriter Information to the Depositor expressly for use in the
Time of Sale
Information.
(iii) Other than the Prospectus, the Depositor (including its
agents and representatives other than the Underwriters in their
capacity as
such) has not made, used, prepared, authorized, approved or
referred to and
will not make, use, prepare, authorize, approve or refer to any
"written
communication" (as defined in Rule 405 under the 1933 Act) that
constitutes an
offer to sell or solicitation of an offer to buy the Certificates
other than
(i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a)
of the 1933 Act or Rule
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134 under the 1933 Act, (ii) the Time of Sale Information, and
(iii) each
other written communication of the Depositor or its agents and
representatives
approved by the Underwriters either in writing in advance or in any
other
manner mutually agreed to by the Underwriters and the Depositor
(each such
communication referred to in clause (ii) and this clause (iii)
constituting an
"issuer free writing prospectus", as defined in Rule 433(h) under
the 1933
Act, being referred to as an "Issuer Free Writing Prospectus").
Each such
Issuer Free Writing Prospectus complied or, if used after the date
hereof,
will comply, in all material respects with the 1933 Act and the
rules and
regulations promulgated thereunder, has been filed or will be filed
in
accordance with Section 4 (to the extent required thereby) and did
not at the
Time of Sale, and at the Closing Date will not, contain any untrue
statements
of a material fact or (when read in conjunction with the other Time
of Sale
Information) omit to state a material fact necessary in order to
make the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that the Depositor makes no
representation and
warranty with respect to (i) any statements or omissions made in
reliance upon
and in conformity with the Underwriter Information or (ii) any
Mortgage Loan
Seller Information contained in or omitted from any Issuer Free
Writing
Prospectus. The parties acknowledge that none of the Underwriters
has
furnished any Underwriter Information to the Depositor expressly
for use in
any Issuer Free Writing Prospectus.
(iv) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of
Delaware with corporate power and authority to enter into and
perform its
obligations under this Agreement and the Pooling and Servicing
Agreement.
(v) The execution, delivery and performance of this Agreement
and the Pooling and Servicing Agreement by the Depositor and the
consummation
of the transactions contemplated herein and therein by the
Depositor and
compliance by the Depositor with its obligations hereunder and
thereunder have
been duly authorized by all necessary corporate action and will not
(A)
contravene any provision of the certificate of incorporation or
by-laws of the
Depositor or applicable law or (B) conflict with or constitute a
breach of or
default under, or result in the creation or imposition of any lien,
charge or
encumbrance upon any property or assets of the Depositor pursuant
to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument
to which the Depositor is a party or by which it may be bound or to
which any
of the property or assets of the Depositor is subject, which
conflict, breach,
default, lien, charge or encumbrance is reasonably likely to
materially and
adversely affect the Depositor's ability to perform its obligations
under this
Agreement or the Pooling and Servicing Agreement.
(vi) The Certificates have been duly authorized for issuance
and sale (or will have been so authorized prior to the issuance
thereof)
pursuant to this Agreement and the Pooling and Servicing Agreement.
When
issued, authenticated and delivered pursuant to the provisions of
this
Agreement and of the Pooling and Servicing Agreement against
payment of the
consideration therefor in accordance with this Agreement, the
Certificates
will be duly and validly issued and outstanding and entitled to the
benefits
provided by the Pooling and Servicing Agreement, except as the
enforceability
thereof may be limited by the effect of (A) bankruptcy,
insolvency,
reorganization, receivership, moratorium or other similar laws
affecting the
enforcement of the rights of creditors generally, and (B) general
principles
of equity, whether
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enforcement is sought in a proceeding in equity or at law. The
Certificates
and the Pooling and Servicing Agreement conform in all material
respects to
all statements relating thereto contained in the Prospectus.
(vii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the offering,
issuance or sale of the Certificates hereunder, except such as have
been, or
as of the Closing Date will have been, obtained or such as may
otherwise be
required under applicable state securities laws in connection with
the
purchase and offer and sale of the Certificates by the Underwriters
and any
recordation of the respective assignments of the Mortgage Loans to
the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet
been
completed.
(viii) This Agreement has been, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed
and
delivered by the Depositor. This Agreement constitutes, and as of
the Closing
Date the Pooling and Servicing Agreement will constitute, a legal,
valid and
binding agreement enforceable against the Depositor in accordance
with its
terms, except as such enforceability may be limited by the effect
of (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other
similar laws affecting the enforcement of the rights of creditors
generally,
(B) general principles of equity, whether enforcement is sought in
a
proceeding in equity or at law, and (C) public policy
considerations
underlying the securities laws, to the extent that such public
policy
considerations limit the enforceability of the provisions of this
Agreement
that purport or are construed to provide indemnification from
securities law
liabilities.
(ix) At the time of the execution and delivery of the Pooling
and Servicing Agreement, the Depositor (A) will convey to the
Trustee, or
cause to be conveyed to the Trustee, all of the Depositor's right,
title and
interest in and to the Mortgage Loans, free and clear of any lien,
mortgage,
pledge, charge, encumbrance, adverse claim or other security
interest
(collectively "Liens") granted by or imposed upon the Depositor,
(B) will not
have assigned to any other person any of its right, title or
interest in the
Mortgage Loans or in the Pooling and Servicing Agreement or the
Certificates,
and (C) will have the power and authority to transfer or cause to
be
transferred its right, title and interest in the Mortgage Loans to
the Trustee
and to sell the Certificates to the Underwriters. Upon execution
and delivery
of the Pooling and Servicing Agreement by the Trustee, the Trustee
will have
acquired ownership of all of the Depositor's right, title and
interest in and
to the Mortgage Loans except to the extent disclosed in the
Prospectus, and
upon delivery to the Underwriters of the Certificates pursuant
hereto, each
Underwriter will have good title to the Certificates purchased by
such
Underwriter, in each case free of Liens granted by or imposed upon
the
Depositor.
(x) The Depositor is not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not
cause the
Depositor or the Trust Fund to be, subject to registration or
regulation as an
"investment company" under the Investment Company Act of 1940, as
amended (the
"1940 Act").
(xi) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Depositor will report the
transfer of
the Mortgage Loans to the Trustee in exchange for the Certificates
and the
sale of the Certificates to the Underwriters pursuant to
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this Agreement as a sale of the interest in the Mortgage Loans
evidenced by
the Certificates. The consideration received by the Depositor upon
the sale of
the Certificates to the Underwriters will constitute at least
reasonably
equivalent value and fair consideration for the Certificates. The
Depositor
will be solvent at all relevant times prior to, and will not be
rendered
insolvent by, the sale of the Certificates to the Underwriters. The
Depositor
is not selling the Certificates to the Underwriters with any intent
to hinder,
delay or defraud any of the creditors of the Depositor.
(xii) The Depositor has not relied on the Underwriters for any
tax, regulatory, accounting or other advice with respect to
compliance with or
registration under any statute, rule or regulation of any
governmental,
regulatory, administrative or other agency or authority. The
Depositor
acknowledges and agrees that (i) the terms of this Agreement and
the offering
(including the price of the Certificates) were negotiated at arm's
length
between sophisticated parties represented by counsel; (ii) no
fiduciary,
advisory or agency relationship between the Depositor and the
Underwriters has
been created as a result of any of the transactions contemplated by
this
Agreement, irrespective of whether any Underwriter has advised or
is advising
the Depositor on other matters; (iii) the Underwriters' obligations
to the
Depositor in respect of the offering, and the purchase and sale, of
the
Certificates are set forth in this Agreement in their entirety; and
(iv) it
has obtained such legal, tax, accounting and other advice as it
deems
appropriate with respect to this Agreement and the transactions
contemplated
hereby and any other activities undertaken in connection therewith,
and it is
not relying on the Underwriters with respect to any such
matters.
(xiii) The Trust Fund (other than those portions specified in
the Pooling and Servicing Agreement) will qualify as three separate
real
estate mortgage investment conduits (each, a "REMIC") for federal
income tax
purposes pursuant to Section 860D of the Internal Revenue Code of
1986, as
amended (the "Code"); the REMIC III Regular Certificates will
constitute
"regular interests" in a REMIC; and the Class R Certificates will
evidence the
sole class of "residual interests" in each related REMIC.
(xiv) There are no legal or governmental proceedings pending
or, to the knowledge of the Depositor, threatened to which the
Depositor is a
party or to which any of the properties of the Depositor are
subject that are
required to be described in the Prospectus or the Time of Sale
Information or
necessary in order to make the statements therein in the light of
the
circumstances under which they were made, not misleading and that
are not so
described, nor are there any contracts or other documents to which
the
Depositor is a party or to which the Depositor or any of the
properties of the
Depositor are subject that are required to be described in the
Prospectus.
(xv) At the Closing Date, the respective classes of
Certificates shall have been assigned ratings no lower than those
set forth in
Schedule I hereto by the nationally recognized statistical
rating
organizations identified in Schedule I hereto (the "Rating
Agencies").
(xvi) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this
Agreement, the
Pooling and Servicing Agreement and the Certificates payable by the
Depositor
(other than income taxes) have been paid or will be paid at or
prior to the
Closing Date.
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(xvii) None of the Depositor or any of its affiliates does
business with the government of Cuba or with any person or
affiliate located
in Cuba within the meaning of Section 517.075, Florida
Statutes.
(xviii) The Depositor is not, and on the date on which the
first bona fide offer of the Certificates is made (within the
meaning of Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer,"
as defined
in Rule 405 under the 1933 Act.
(b) Each Underwriter represents and warrants to the Depositor
that, as of the date hereof and as of the Closing Date, such
Underwriter has
complied with all of its obligations hereunder.
2.
Purchase and Sale.
Subject to the terms and conditions herein set forth and in
reliance
upon the representations and warranties herein contained, the
Depositor shall
sell to the Underwriters, and each Underwriter shall, severally and
not
jointly, purchase from the Depositor, at the related purchase price
set forth
on Schedule I hereto, Certificates of each class thereof having an
actual or
notional amount as set forth on Schedule I hereto opposite their
names. There
will be added to the purchase price of the Certificates an amount
equal to
interest accrued thereon pursuant to the terms thereof from
_________, 2006 to
but excluding the Closing Date.
3.
Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of,
the
Certificates shall be made at 10:00 a.m. New York City time on
_________,
2006, which date and time may be postponed by agreement between
the
Underwriters and the Depositor (such time and date of payment and
delivery,
the "Closing Date"). Payment shall be made to the Depositor by
the
Underwriters of the purchase prices of the Certificates as set
forth in
Schedule I in immediately available Federal funds wired to such
bank as may be
designated by the Depositor, against delivery of the Certificates.
Delivery of
the Certificates will be made in book-entry form through the
facilities of The
Depository Trust Company ("DTC"). Each class of Certificates will
be
represented by one or more definitive global Certificates to be
deposited by
or on behalf of the Depositor with DTC or the Trustee. The
Certificates will
be made available for examination by the Underwriters not later
than 10:00
a.m. New York City time on the last business day prior to the
Closing Date.
The closing of the transactions contemplated hereby shall be made
at the
offices of Latham & Watkins LLP, 885 Third Avenue, New York,
New York 10022,
or at such other place as shall be agreed upon by the Underwriters
and the
Depositor.
4.
Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further
understood
that the Depositor, in reliance upon Policy Statement 105, has not
and will
not file an offering statement pursuant to Section 352-e of the
General
Business Law of the State of New York with respect to the
Certificates. Each
Underwriter severally and not jointly therefore agrees that sales
of the
Certificates made by such Underwriter in and from the State of New
York will
be made only to institutional investors within the meaning of
Policy Statement
105.
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(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors
Free
Writing Prospectuses (as defined below), or portions thereof,
subject to the
following conditions (to which such conditions each Underwriter
agrees
(provided that no Underwriter shall be responsible for any breach
of the
following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication
to
any
person in connection with the initial offering of the
Certificates,
unless such written communication (1) is made in reliance on Rule
134
under the 1933 Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act, or (3) constitutes
Time
of
Sale Information or a Free Writing Prospectus that does not
constitute Time of Sale Information. The Underwriters shall not
convey
or
deliver in connection with the initial offering of the
Certificates
any
"computational materials" or "ABS term sheets" in reliance on
the
"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 to the Depositor, no
later than two business days prior to the date of first use thereof
or
such
later date as may be agreed to by the Depositor, (a) any Free
Writing Prospectus that was prepared by or on behalf of such
Underwriter (an "Underwriter Free Writing Prospectus") and that
contains any "issuer information," as defined in Rule 433(h) under
the
1933
Act and footnote 271 of the Commission's Securities Offering
Reform Release No. 33-8591 ("Issuer Information") (which the
parties
hereto agree includes, without limitation, Mortgage Loan Seller
Information), and (b) any Free Writing Prospectus or portion
thereof
prepared by or on behalf of such Underwriter that contains only
a
description of the final terms of the Certificates. Notwithstanding
the
foregoing, any Free Writing Prospectus that contains only ABS
Informational and Computational Materials may be delivered by
an
Underwriter to the Depositor not later than the later of (A)
two
business days prior to the due date for filing of the
Prospectus
pursuant to Rule 424(b) under the 1933 Act or such later date as
may be
agreed to by the Depositor or (B) the date of first use of such
Free
Writing Prospectus.
(iii) Each Underwriter represents and warrants to the
Depositor that the Free Writing Prospectuses to be furnished to
the
Depositor by such Underwriter pursuant to Section 4(b)(ii) will
constitute all Free Writing Prospectuses of the type described
therein
that
were furnished to prospective investors by such Underwriter in
connection with its offer and sale of the Certificates.
(iv) Each Underwriter represents and warrants to the
Depositor that each Free Writing Prospectus required to be provided
by
it
to the Depositor pursuant to Section 4(b)(ii) did not, as of
the
Time
of Sale, and will not as of the Closing Date, include any
untrue
statement of a material fact or omit any material fact necessary
to
make
the statements contained therein (when read in conjunction with
the
Time of Sale Information), in light of the circumstances under
which they were made, not misleading;
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provided however, that such Underwriter makes no representation
to
the extent such
misstatements or omissions were the result of any
inaccurate Issuer Information, which information was not corrected
by
Corrective Information subsequently supplied by the Depositor or
any
Mortgage Loan Seller to such Underwriter within a reasonable
period
of
time prior to the Time of Sale.
(v) The
Depositor agrees to file with the Commission
the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof
delivered by any Underwriter to the Depositor pursuant to
Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which the
Depositor or any person acting on its behalf provided,
authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the
Depositor or any other offering participant that is in the
business of publishing, radio or television broadcasting or
otherwise disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be
required to file (1) Issuer Information contained in any
Underwriter Free Writing Prospectus or Free Writing Prospectus
of any other offering participant other than the Depositor, if
such information is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with the
Commission that relates to the offering of the Certificates, or
(2) any Free Writing Prospectus or portion thereof that
contains a description of the Certificates or the offering of
the Certificates which does not reflect the final terms
thereof.
The Depositor is required to file such Free Writing
Prospectuses with the Commission in electronic format and the
Underwriters shall use reasonable efforts to provide to the
Depositor such Free Writing Prospectuses, or portions thereof,
in either Microsoft Word(R) or Microsoft Excel(R) format and
not in a PDF, except to the extent that the Depositor, in its
sole discretion, waives such requirements,
(vi) Any Free Writing Prospectus required to be filed
pursuant to Section 4(b)(v) by the Depositor shall be filed with
the
Commission not later than the date of first use of the Free
Writing
Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the
final terms of the Certificates shall be filed by the Depositor
with the Commission within two days of the later of the date
such final terms have been established for all classes of
Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Depositor with the
Commission not later than the later of the due date for filing
the final Prospectus relating to the Certificates pursuant to
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Rule 424(b) under the 1933 Act or two business days after the
first use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be
filed pursuant to Section 4(b)(v)(C) shall, if no payment has
been made or consideration has been given by or on behalf of
the Depositor for the Free Writing Prospectus or its
dissemination, be filed by the Depositor with the Commission
not later than four business days after the Depositor becomes
aware of the publication, radio or television broadcast or
other dissemination of the Free Writing Prospectus.
(vii) Each Underwriter shall file with the Commission any
Free
Writing Prospectus that is used or referred to by it and
distributed by or on behalf of such Underwriter in a manner
reasonably
designed to lead to its broad, unrestricted dissemination not
later
than
the date of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section
4(b)(vii), each Underwriter shall file with the Commission any
Free
Writing Prospectus for which such Underwriter or any person acting
on
its
behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated
with
the
Depositor or any other offering participant that is in the
business
of
publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was
made
or
consideration given by or on behalf of the Depositor or any
other
offering participant, not later than four business days after
such
Underwriter becomes aware of the publication, radio or
television
broadcast or other dissemination of the Free Writing
Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v)
and
4(b)(vii), neither the Depositor nor any Underwriter shall be
required to file any Free Writing Prospectus that does not
contain
substantive changes from or additions to a Free Writing
Prospectus
previously filed with the Commission, and no Underwriter shall
be
required to file any Free Writing Prospectus to the extent that
the
information contained therein is included in a prospectus or
Free
Writing Prospectus previously filed that relates to the offering of
the
Certificates.
(x) The Depositor and the Underwriters each agree that any
Free
Writing Prospectuses prepared by it shall contain the following
legend, or substantially equivalent legend that complies with Rule
433
of
the 1933 Act:
The depositor has filed a registration statement
(including a prospectus) with the SEC for the offering to
which this communication relates. Before you invest, you
should read the prospectus in that registration statement
and other documents the depositor has filed with the SEC
for more complete information about the depositor, the
issuing trust, and this offering. You may get these
documents for free by visiting 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.
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(xi) The Depositor and each Underwriter agree to retain
all
Free Writing Prospectuses that they have used and that are not
required to be filed pursuant to this Section 4 for a period of
three
years following the initial bona fide offering of the
Certificates.
(xii) (A) If the Depositor becomes aware that, as of the
Time
of Sale, any Issuer Free Writing Prospectus delivered to an
investor in any Certificate contained any untrue statement of a
material fact or omitted to state a material fact necessary in
order to
make
the statements contained therein (when read in conjunction with
the
Time of Sale Information), in light of the circumstances under
which they were made, not misleading (a "Defective Issuer Free
Writing
Prospectus"), the Depositor shall notify the Underwriters of
such
untrue statement or omission within one business day after
discovery
and
the Depositor shall, if requested by the Underwriters, prepare
and
deliver to the Underwriters a Free Writing Prospectus that corrects
the
material misstatement or omission in the Defective Issuer Free
Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a
"Corrected
Issuer Free Writing Prospectus").
(B) If any Underwriter becomes aware that, as of
the Time of Sale, any Underwriter Free Writing Prospectus
delivered to an investor in any Certificates contained any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of
Sale Information), in light of the circumstances under which
they were made, not misleading (together with a Defective
Issuer Free Writing Prospectus, a "Defective Free Writing
Prospectus"), such Underwriter shall notify the Depositor of
such untrue statement or omission within one business day after
discovery.
(C) The Underwriters shall, if requested by the
Depositor:
(1) if the Defective Free Writing Prospectus
was an Underwriter Free Writing Prospectus, prepare a Free
Writing Prospectus that corrects the material misstatement
in or omission from the Defective Free Writing Prospectus
(together with a Corrected Issuer Free Writing Prospectus,
a "Corrected Free Writing Prospectus");
(2) deliver the Corrected Free Writing
Prospectus to each investor which received the Defective
Free Writing Prospectus prior to entering into a contract
of sale with such investor;
(3) notify such investor in a prominent
fashion that the prior contract of sale with the investor
has been terminated, and of the investor's rights as a
result o
