EXHIBIT 1.1
COMM 2006-C8
Commercial Mortgage Pass-Through Certificates
UNDERWRITING AGREEMENT
December 13, 2006
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York
10005
Banc of America Securities LLC
214 North Tryon Street
NC1-027-22-03
Charlotte, North Carolina 28255
Barclays Capital Inc.
200 Park Avenue, 4th Floor
New York, New York 10166
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York
10036
Ladies and Gentlemen:
Deutsche Mortgage & Asset Receiving Corporation, a Delaware
corporation (the "Company"), proposes, subject to the terms and
conditions
stated herein, to sell to Deutsche Bank Securities Inc. ("DBS"),
Banc of America
Securities LLC ("BAS"), Barclays Capital Inc. ("BCI") and Morgan
Stanley & Co.
Incorporated ("Morgan Stanley" and, collectively with DBS, BAS and
BCI, the
"Underwriters") its COMM 2006-C8, Commercial Mortgage Pass-Through
Certificates,
Class A-1, Class A-2A, Class A-2B, Class A-3, Class A-AB, Class
A-4, Class A-1A,
Class XP, Class A-M, Class A-J, Class B, Class C, Class D, Class E,
Class F and
Class G (the "Offered Certificates"). The Offered Certificates,
together with
the Class XS, Class H, Class J, Class K, Class L, Class M, Class N,
Class O,
Class P, Class Q and Class S Certificates, evidence the entire
beneficial
ownership interest in the assets of the Trust Fund (as defined in
the Pooling
and Servicing Agreement referred to below) consisting primarily of
a pool of
mortgage loans secured by first liens on commercial, multifamily
and
manufactured housing properties (the "Mortgage Loans"), that will
have, as of
the earlier of December 1, 2006, or the date of origination of each
Mortgage
Loan (such date, the "Cut-off Date"), after taking into account all
payments of
principal due on the Mortgage Loans on or before such date, whether
or not
received, an aggregate principal balance of $3,775,704,017, subject
to a
variance of plus or minus 5%. The Mortgage Loans will be acquired
by the Company
from German American Capital Corporation ("GACC"), Barclays Capital
Real Estate
Inc. ("BCRE"), Bank of America, National Association ("BANA") and
General
Electric Capital Corporation ("GECC," and together with GACC, BCRE
and BANA, the
"Loan Sellers") in exchange for immediately available funds
pursuant to four
separate mortgage loan purchase and sale agreements, each to be
dated as of
December 21, 2006, between the Company and GACC, BANA, GECC and
BCRE,
respectively. Two separate real estate mortgage investment conduit
("REMIC")
elections will be made with respect to the Trust Fund for federal
income tax
purposes. The Trust Fund is to be created and the Offered
Certificates are to be
issued pursuant to a pooling and servicing agreement (the "Pooling
and Servicing
Agreement") to be dated as of December 1, 2006, by and among the
Company, as
depositor, Midland Loan Services, Inc., as the master servicer with
respect to
all of the Mortgage Loans other than the EZ Storage Portfolio Loan
(the "Master
Servicer"), LNR Partners, Inc., as special servicer (the "Special
Servicer") and
LaSalle Bank National Association, as trustee (the "Trustee") and
paying agent.
The Mortgage Loans will be primary serviced by BANA (with respect
to certain
Mortgage Loans sold by BCRE and BANA) (the "Primary Servicer" and
together with
the Trustee, the Master Servicer and the Special Servicer, each a
"Transaction
Party" and collectively the "Transaction Parties"). Capitalized
terms used
herein but not defined herein have the respective meanings given to
them in the
Pooling and Servicing Agreement.
1. Representations and Warranties The Company represents and
warrants to, and agrees with, the Underwriters that: (a) The
Company has filed
with the Securities and Exchange Commission (the "Commission") a
registration
statement (No. 333-130390) on Form S-3 for registration under the
Securities Act
of 1933, as amended (the "Act"), of mortgage pass-through
certificates,
including the Offered Certificates, which registration statement
has become
effective, and copies of which, as amended to the date hereof, have
heretofore
been delivered to you. Such registration statement meets the
requirements set
forth in Rule 415(a)(1) under the Act and complies in all other
material
respects with such rule. The Company proposes to file with the
Commission
pursuant to Rule 424 under the Act a supplement, dated December 18,
2006, to the
prospectus, dated October 9, 2006, relating to the Offered
Certificates and the
method of distribution thereof and has previously advised you of
all further
information (financial and other) with respect to the Offered
Certificates set
forth therein. Such registration statement, including the exhibits
thereto and
any information incorporated therein by reference, as amended on
the date hereof
is hereinafter called the "Registration Statement"; such
prospectus, in the form
in which it will be filed with the Commission pursuant to Rule 424
under the
Act, is hereinafter called the "Base Prospectus"; such supplement
to the Base
Prospectus, in the form in which it will be filed with the
Commission pursuant
to Rule 424 of the Act, is hereinafter called the "Prospectus
Supplement"; and
the Base Prospectus and the Prospectus Supplement together are
hereinafter
called the "Prospectus". The Company shall make a good faith and
reasonable
effort to file the Prospectus within the time required under Rule
424 of the Act
and, in the event that the Company fails to timely file the
Prospectus, the
Company shall file the Prospectus as soon as practicable
thereafter. The Company
will not, without your prior consent, file any other amendment to
the
Registration Statement or make any change in the Base Prospectus or
the
Prospectus Supplement until after the period during which a
prospectus is
required to be delivered to purchasers of the Offered Certificates
under the Act
(the "Prospectus Delivery Period"). The Company will file with the
Commission
within fifteen days of the issuance of the Offered Certificates a
report on Form
8-K setting forth specific information concerning the Offered
Certificates (the
"Form 8-K").
(b) As of or prior to the time when sales to purchasers of the
Offered Certificates were first made in accordance with Rule 159 of
the Act,
which was approximately 11:46 a.m. (New York City time) on the date
hereof (the
"Time of Sale"), the Company had prepared and filed with the
Commission the
following information: (i) the Free Writing Prospectus (as defined
below), dated
December 4, 2006, the first page of which is attached hereto as
Exhibit A, (the
"Preliminary FWP"); (ii) the Free Writing Prospectus, dated
December 8, 2006,
the first page of which is attached hereto as Exhibit B (a "Revised
FWP"); (iii)
the Free Writing Prospectus, dated December 12, 2006, the first
page of which is
attached hereto as Exhibit C; (vi) the Free Writing Prospectus,
dated December
13, 2006, the first page of which is attached hereto as Exhibit D;
and the Free
Writing Prospectus, dated December 13, 2006, the first page of
which is attached
hereto as Exhibit E (a "Revised FWP", and collectively, the
"Revised FWPs"). The
Preliminary FWP, the Revised FWPs and any additional Disclosure
Information (as
defined below) delivered to the investors prior to the Time of Sale
is
collectively referred to as the "Time of Sale Information." If,
subsequent to
the date of this Agreement, the Company or the Underwriters
determine that, as
to the investors in one or more Classes of the Offered
Certificates, such
initial Time of Sale Information includes an untrue statement of
material fact
or omits to state a material fact necessary in order to make the
statements
therein, in light of the circumstances under which they were made,
not
misleading, and the Underwriters terminate their old purchase
contracts and
enter into new purchase contracts with investors in such Classes of
the Offered
Certificates, then "Time of Sale Information" shall refer to all of
the
information conveyed to investors at the time of entry into the new
purchase
contract (each, a "Subsequent Time of Sale"), including any
information that
corrects such material misstatements or omissions ("Corrective
Information").
The Preliminary FWP and the Revised FWPs are the only Issuer Free
Writing
Prospectuses (as defined below) prepared by or on behalf of the
Company as of
the date hereof.
(c) As of the date hereof, when the Registration Statement
became
effective, as of the Time of Sale, when the Prospectus Supplement
is first filed
pursuant to Rule 424 under the Act, at the time of any Subsequent
Time of Sale,
when, prior to the Closing Date, any amendment to the Registration
Statement
becomes effective, when any supplement to the Prospectus Supplement
is filed
with the Commission, and on the Closing Date, (i) the Registration
Statement, as
amended as of any such time, and the Prospectus, as amended or
supplemented as
of any such time, complied, complies and will comply in all
material respects
with the applicable requirements of the Act and the rules
thereunder, (ii) the
Registration Statement, as amended as of any such time, did not,
does not and
will not contain any untrue statement of a material fact and did
not, does not
and will not omit to state any material fact required to be stated
therein or
necessary to make the statements therein not misleading and the
Prospectus, as
amended or supplemented as of any such time, did not, does not and
will not
contain an untrue statement of a material fact and did not, does
not and will
not omit to state a material fact necessary in order to make the
statements
therein, in light of the circumstances under which they were made,
not
misleading and (iii) the initial Time of Sale Information did not
(when
evaluated as of the Time of Sale only), and the Time of Sale
Information
existing at any Subsequent Time of Sale, if any, will not, as of
such Subsequent
Time of Sale, contain an untrue statement of a material fact or
omit to state a
material fact necessary in order to make the statements therein, in
light of the
circumstances under which they were made, not misleading; provided,
however,
that the Company makes no representations or warranties as to (A)
the
Underwriter Supplied Information (as defined in Section 8(b)
hereof), (B) the
Loan Sellers' Information (as defined in Section 8(a) hereof) or
(C) the
Transaction Party Information (as defined in Section 8(a) hereof).
Any Issuer
Information (as defined below) provided by the Company to any
Underwriter as of
the date hereof for inclusion in an Underwriter Free Writing
Prospectus (as
defined below), did not, as of the date that such Issuer
Information was so
provided, and does not, as of the date of this Agreement, contain
an untrue
statement of a material fact or omit to state a material fact
necessary in order
to make the statements therein, in light of the circumstances under
which they
were made, not misleading; provided, however, the Company shall not
be in breach
of this representation if the Company provided Issuer Information
to the
Underwriters, correcting such untrue statement or omission of a
material fact
contained in previously delivered Issuer Information, so long as
the Company
delivered the corrected information to the Underwriter at a
reasonable time
prior to the date hereof.
(d) The Company is a corporation, duly organized, validly
existing
and in good standing under the laws of the State of Delaware with
full power and
authority (corporate and other) to own its properties and conduct
its business,
as described in the Prospectus, and to enter into and perform its
obligations
under this Agreement, the Mortgage Loan Purchase Agreements and the
Pooling and
Servicing Agreement, and is conducting its business so as to comply
in all
material respects with all applicable statutes, ordinances, rules
and
regulations of the jurisdictions in which it is conducting
business.
(e) The Company has not received and is not aware of (i) any
request
by the Commission for any further amendment of the Registration
Statement or the
Prospectus or for any additional information, (ii) the issuance by
the
Commission of any stop order suspending the effectiveness of the
Registration
Statement or the institution or threatening of any proceeding for
that purpose
or (iii) any notification with respect to the suspension of the
qualification of
the Offered Certificates for sale in any jurisdiction or the
initiation or
threatening of any proceeding for such purpose.
(f) On or prior to the Closing Date, the Company will have
entered
into the Pooling and Servicing Agreement and the Mortgage Loan
Purchase
Agreements; this Agreement has been duly authorized, executed and
delivered by
the Company, and the Pooling and Servicing Agreement and the
Mortgage Loan
Purchase Agreements, when delivered by the Company, will have been
duly
authorized, executed and delivered by the Company, and this
Agreement
constitutes, and the Pooling and Servicing Agreement and the
Mortgage Loan
Purchase Agreements will constitute, valid and binding agreements
of the
Company, enforceable against the Company in accordance with their
terms, except
as such enforceability may be limited by (i) bankruptcy,
insolvency,
liquidation, moratorium, receivership, reorganization or similar
laws affecting
the rights of creditors generally, (ii) general principles of
equity, whether
enforcement is sought in a proceeding in equity or at law, and
(iii) public
policy considerations underlying the securities laws, to the extent
that such
public policy considerations limit the enforceability of any
provisions of this
Agreement that purport to provide indemnification from securities
law
liabilities.
(g) The Offered Certificates and the Pooling and Servicing
Agreement: (i) conform in all material respects to the descriptions
thereof
contained in each of (A) the Prospectus, (B) the initial Time of
Sale
Information and (C) any Issuer Information (as may have been
revised and
corrected if such revised or corrected information was delivered a
reasonable
time prior to the Time of Sale) delivered to any Underwriter for
inclusion in an
Underwriter Free Writing Prospectus; and (ii) will conform in all
material
respects to the descriptions thereof in the Time of Sale
Information (as
constituted at any Subsequent Time of Sale). The Offered
Certificates have been
duly and validly authorized by the Company, and will, when duly and
validly
executed and authenticated by the Trustee and delivered to and paid
for by the
Underwriters in accordance with this Agreement and the Pooling and
Servicing
Agreement, be validly outstanding and entitled to the benefits of
the Pooling
and Servicing Agreement.
(h) As of the Closing Date, the representations and warranties
of
the Company set forth in Section 2.03 of the Pooling and Servicing
Agreement
will be true and correct.
(i) Neither the issuance and sale of the Offered Certificates,
nor
the consummation of any other of the transactions contemplated
herein, nor the
fulfillment of any of the terms of the Pooling and Servicing
Agreement, the
Mortgage Loan Purchase Agreements or this Agreement, will result in
the breach
of any term or provision of the certificate of incorporation or
by-laws of the
Company or conflict with, result in a material breach, violation or
acceleration
of or constitute a default under, the terms of any indenture or
other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by
which it is bound, or any statute, order or regulation applicable
to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency
or governmental body having jurisdiction over the Company or any of
its
subsidiaries. Neither the Company nor any of its subsidiaries is a
party to,
bound by or in breach or violation of any indenture or other
agreement or
instrument, or subject to or in violation of any statute, order or
regulation of
any court, regulatory body, administrative agency or governmental
body having
jurisdiction over it, which materially and adversely affects the
ability of the
Company to perform its obligations under each of this Agreement,
the Mortgage
Loan Purchase Agreements and the Pooling and Servicing
Agreement.
(j) There are no actions or proceedings against, or
investigations
of, the Company pending, or, to the knowledge of the Company,
threatened, before
any court, administrative agency or other tribunal (i) asserting
the invalidity
of this Agreement, the Pooling and Servicing Agreement or the
Offered
Certificates, (ii) seeking to prevent the issuance of the Offered
Certificates
or the consummation of any of the transactions contemplated by this
Agreement or
the Pooling and Servicing Agreement, (iii) which might materially
and adversely
affect the performance by the Company of its obligations under, or
the validity
or enforceability of, this Agreement, the Pooling and Servicing
Agreement or the
Offered Certificates or (iv) seeking to affect adversely the
federal income tax
attributes of the Offered Certificates described in the
Prospectus.
(k) There has not been any material adverse change in the
business,
operations, financial condition, properties or assets of the
Company since the
date of its latest audited financial statements which would have a
material
adverse effect on the ability of the Company to perform its
obligations under
this Agreement or the Pooling and Servicing Agreement.
(l) Any taxes, fees and other governmental charges in
connection
with the execution, delivery and performance of this Agreement and
the Pooling
and Servicing Agreement (other than income taxes, franchise taxes
and recording
and filing fees) and the execution, delivery and sale of the
Offered
Certificates have been or will be paid on or prior to the Closing
Date.
(m) Immediately prior to the assignment of the Mortgage Loans to
the
Trustee, the Company will have good title to, and will be the sole
owner of,
each Mortgage Loan free and clear of any pledge, mortgage, lien,
security
interest or other encumbrance of any other person, except for any
retained
servicing.
(n) No authorization, approval or consent of or filing or
registration with, any court or governmental authority or agency is
necessary in
connection with the offering, issuance or sale of the Offered
Certificates
hereunder or the execution, delivery or performance by the Company
of the
Pooling and Servicing Agreement or this Agreement, except such as
have been, or
as of the Closing Date will have been, obtained or completed, as
applicable, or
such as may otherwise be required under applicable state securities
laws in
connection with the purchase and offer and sale of the Offered
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.
(o) The Company is not, and the issuance and sale of the
Offered
Certificates in the manner contemplated by the Prospectus will not
cause the
Company 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"); and the Pooling and Servicing Agreement is not
required to be
qualified under the Trust Indenture Act of 1939, as amended (the
"Trust
Indenture Act").
(p) Upon delivery to the Underwriters of the Offered
Certificates
pursuant to this Agreement, each Underwriter will have good title
to the Offered
Certificates purchased by such Underwriter, in each case free and
clear of liens
granted by or imposed upon the Company.
(q) The consideration received by the Company upon the sale of
the
Offered Certificates to the Underwriters will constitute at least
reasonably
equivalent value and fair consideration for the Offered
Certificates.
(r) The Company (i) will be solvent at all relevant times prior
to,
and will not be rendered insolvent by, the sale of the Offered
Certificates to
the Underwriters and (ii) is not selling the Offered Certificates
to the
Underwriters with any intent to hinder, delay or defraud any of the
creditors of
the Company.
(s) The transfer of the Mortgage Loans to the Trust and the sale
of
the Offered Certificates to each of the Underwriters, at the
Closing Date, will
be treated by the Company for financial accounting and reporting
purposes as a
sale of assets and not as a pledge of assets to secure debt.
(t) The
Company possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, federal
or foreign
regulatory agencies or bodies necessary to conduct business now
operated by it,
and the Company has not received any notice of proceedings relating
to the
revocation or modification of any such license, certificate,
authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable
decision, ruling or finding, would materially and adversely affect
the
condition, financial or otherwise, or the earnings, business
affairs or business
prospects of the Company.
(u) the Company is not, and on the date on which the first bona
fide
offer of the Certificates is made will not be, an "ineligible
issuer," as
defined in Rule 405 under the Act.
2. Purchase and Sale. On the basis of the representations and
warranties herein contained and subject to the terms and conditions
herein set
forth, the Company agrees to sell to the Underwriters, and each of
the
Underwriters agrees severally, and not jointly, to purchase from
the Company the
principal or notional amount of each class of Offered Certificates
under its
name at the Purchase Price set forth in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Offered
Certificates shall be made on the date, location and time of
delivery set forth
in Schedule I hereto, or such later date as DBS and BAS shall
designate, which
date and time may be postponed by agreement between the
Underwriters and the
Company (such date, location and time of delivery and payment for
the Offered
Certificates being herein called the "Closing Date"). Delivery of
the Offered
Certificates shall be made to the Underwriters against payment by
the
Underwriters of the purchase price thereof in immediately available
funds.
Delivery of such Offered Certificates shall be made through the
facilities of
the depository or depositories set forth on Schedule I hereto. Any
Offered
Certificates not in book-entry form shall be registered in such
names and in
such denominations as any Underwriter, as applicable, may request
not less than
three full business days in advance of the Closing Date.
The Company agrees to have the Offered Certificates available
for
inspection, checking and packaging, as applicable, by the
Underwriters in New
York, New York, not later than 1:00 p.m. on the business day prior
to the
Closing Date.
4. Offering by Underwriters.
(a) It is understood that the several Underwriters propose to
offer
the Offered Certificates for sale to the public as set forth in the
Prospectus
and the Underwriters agree that all such offers and sales by them
shall be made
in compliance with all applicable laws and regulations. It is
further understood
that the Company, in reliance upon a no-filing letter from the
Attorney General
of the State of New York granted pursuant to 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 Offered
Certificates.
As required by Policy Statement 105, each Underwriter therefore
covenants and
agrees with the Company that sales of the Offered Certificates made
by such
Underwriter, as applicable, in and from the State of New York will
be made only
to institutional accredited investors within the meaning of Policy
Statement
105.
(b) Each Underwriter hereby represents and agrees, severally and
not
jointly, that in relation to each Member State of the European
Economic Area
which has implemented the Prospectus Directive (each, a "Relevant
Member
State"), with effect from and including the date on which the
Prospectus
Directive is implemented in that Relevant Member State (the
"Relevant
Implementation Date") it has not made and will not make an offer of
the Offered
Certificates to the public in that Relevant Member State, except
that it may,
with effect from and including the Relevant Implementation Date,
make an offer
of the Offered Certificates to the public in that Relevant Member
State:
(i) in (or in Germany, where the offer starts within) the
period
beginning
on the date the publication of a prospectus in relation to the
Offered
Certificates which has been approved by the competent authority
in
that
Relevant Member State or, where appropriate, approved in
another
Relevant
Member State and notified to the competent authority in that
Relevant
Member State, all in accordance with the Prospectus Directive
and
ending on
the date which is 12 months after the date of publication;
(ii) at any time 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;
(iii) at any time 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
(iv) in any other circumstances which do not require the
publication
by the
Company of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the purposes of this representation, the expression an "offer
of
the certificates to the public" in relation to any Offered
Certificates in any
Relevant Member State means the communication in any form and by
any means of
sufficient information on the terms of the offer and the Offered
Certificates to
be offered so as to enable an investor to decide to purchase or
subscribe the
Offered Certificates, as the same may be varied in that Member
State by any
measure implementing the Prospectus Directive in that Member State,
and the
expression "Prospectus Directive" means Directive 2003/71/EC and
includes any
relevant implementing measure in each Relevant Member State.
(c) Each Underwriter, severally and not jointly, hereby further
represents and agrees, with respect to the United Kingdom,
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) received by it in connection with the
issue or
sale of the Notes in circumstances in which Section 21(1) of
the
Financial
Services and Markets Act does not apply to the Company; and
(ii) it has complied and will comply with all applicable
provisions
of the
Financial Services and Markets Act with respect to anything done
by
it in
relation to the certificates in, from or otherwise involving
the
United
Kingdom.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will promptly advise the Underwriters (i) when
any
amendment to the Registration Statement shall have become
effective, (ii) of any
request by the Commission for any amendment to the Registration
Statement or the
Prospectus or for any additional information, (iii) of the issuance
by the
Commission of any stop order suspending the effectiveness of the
Registration
Statement affecting the Offered Certificates or the institution or
threatening
of any proceeding for that purpose and (iv) of the receipt by the
Company of any
notification with respect to the suspension of the qualification of
the Offered
Certificates for sale in any jurisdiction or the initiation or
threatening of
any proceeding for such purpose. The Company will not file any
amendment to the
Registration Statement or supplement to the Prospectus unless the
Company has
furnished to you a copy for your review prior to filing and will
not file any
such proposed amendment or supplement to which you reasonably
object until after
the period in which a prospectus is required to be delivered to
purchasers of
the Offered Certificates under the Act. Subject to the foregoing
sentence, the
Company will cause the Prospectus Supplement to be filed with the
Commission in
accordance with Rule 424 of the Act. The Company 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.
(b) If, at any time during the Prospectus Delivery Period any
event
occurs as a result of which the Prospectus as then amended or
supplemented would
include any untrue statement of a material fact or omit to state
any material
fact necessary to make the statements therein in light of the
circumstances
under which they were made not misleading, or if it shall be
necessary to amend
or supplement the Registration Statement or the Prospectus to
comply with the
Act or the rules under the Act, the Company promptly will prepare
and file with
the Commission, subject to paragraph (a) of this Section 5, an
amendment or
supplement that will correct such statement or omission or an
amendment that
will effect such compliance and, if such amendment or supplement is
required to
be contained in a post-effective amendment to the Registration
Statement, will
use its best efforts to cause such amendment of the Registration
Statement to be
made effective as soon as possible.
(c) The Company will furnish to the Underwriters and counsel for
the
Underwriters, without charge, signed copies of the Registration
Statement
(including exhibits thereto) and each amendment thereto that shall
become
effective on or prior to the Closing Date and, during the
Prospectus Delivery
Period, as many copies of the Base Prospectus and the Prospectus
Supplement and
any amendments and supplements thereto as the Underwriters may
reasonably
request. Prior to the date on which the Base Prospectus and the
Prospectus
Supplement are available, the Company will furnish to the
Underwriters and
counsel for the Underwriters, without charge as many copies of the
Preliminary
FWP and each Issuer Free Writing Prospectus as the Underwriters may
reasonably
request.
(d) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to
qualify the
Offered Certificates for sale under the laws of such jurisdictions
as the
Underwriters may designate and will maintain such qualification in
effect so
long as required for the distribution of the Offered Certificates;
provided,
however, the Company shall not be required to qualify to do
business in any
jurisdiction where it is not now so qualified or to take any action
that would
subject it to general or unlimited service of process in any
jurisdiction where
it is not now so subject.
(e) Whether or not the transactions contemplated by this
Agreement
are consummated, the Company shall pay all costs and expenses in
connection with
the transactions herein contemplated, including, but not limited
to, the fees
and disbursements of its counsel and of counsel to the
Underwriters, the fees
and disbursements of accountants for the Company, the costs and
expenses in
connection with the qualification, or exemption from qualification,
of the
Offered Certificates under state securities or "blue sky" laws
(including filing
fees and reasonable fees and disbursements of counsel in connection
therewith),
the preparation of any blue sky survey, any determination of the
eligibility of
the Offered Certificates for investment by institutional investors
and the
preparation of any legal investment survey, all fees and expenses
incurred in
connection with the registration and delivery of the Offered
Certificates under
the Act, and all other fees or expenses in connection with the
preparation and
filing of the Registration Statement, any Free Writing Prospectus,
the
Prospectus and amendments and supplements to any of the foregoing,
including all
printing costs associated therewith, and the mailing and delivery
of copies
thereof to the Underwriters and dealers, in the quantities
specified above, all
costs and expenses related to the transfer and delivery of the
Offered
Certificates to the Underwriters, including any transfer or other
taxes payable
thereon, the cost of printing the Offered Certificates, the upfront
costs and
charges of any transfer agent, registrar or depository, the fees
and expenses of
the rating agencies incurred in connection with the issuance and
sale of the
Offered Certificates, the out-of-pocket expenses of each
Underwriter incurred in
connection with the purchase and sale of the Offered Certificates
and all other
costs and expenses incident to the performance of the obligations
of the Company
hereunder for which provision is not otherwise made in this Section
5(e).
(f) The Company acknowledges and agrees that each Underwriter
in
providing investment banking services to the Company in connection
with the
offering, including in acting pursuant to the terms of this
Agreement, has acted
and is acting as an independent contractor and not as a fiduciary
and the
Company does not intend such Underwriter to act in any capacity
other than
independent contractor, including as a fiduciary or in any other
position of
higher trust.
(g) The Company will, pursuant to reasonable procedures developed
in
good faith, retain copies of each Issuer Free Writing Prospectus or
any
materials used in a Road Show (as defined in Rule 433 of the Act)
that are
required to be retained by the Company pursuant to the Act, to the
extent not
filed with the Commission in accordance with Rule 433 under the
Act.
6. Conditions to the Obligations of the Underwriters. The
respective
rights and obligations of the Underwriters hereunder shall be
subject to the
accuracy of the representations and warranties on the part of the
Company
contained herein as of the date hereof and the Closing Date, to the
accuracy of
the statements of the Company made in any certificates pursuant to
the
provisions hereof, to the performance by the Company of its
obligations
hereunder and to the following additional conditions with respect
to the Offered
Certificates:
(a) No stop order suspending the effectiveness of the
Registration
Statement shall have been issued and no proceedings for that
purpose shall have
been instituted or threatened; and the Prospectus Supplement shall
have been
filed with the Commission within the time period prescribed by the
Commission.
(b) The Company shall have delivered to you a certificate, dated
the
Closing Date, of any president or vice president of the Company to
the effect
that the signatory of such certificate has carefully examined the
Registration
Statement, the Time of Sale Information, this Agreement and the
Prospectus and
that: (i) the representations and warranties of the Company in this
Agreement
are true and correct in all material respects on and as of the
Closing Date with
the same effect as if made on the Closing Date, (ii) the Company
has complied
with all the agreements and satisfied all the conditions on its
part to be
performed or satisfied on or prior to the Closing Date, (iii) no
stop order
suspending the effectiveness of the Registration Statement has been
issued and
no proceedings for that purpose have been instituted or, to the
Company's
knowledge, threatened, and (iv) nothing has come to his/her
attention that would
lead him/her to believe that the Time of Sale Information, as of
the Time of
Sale, or the Prospectus, as of the Closing Date, contains any
untrue statement
of a material fact or omits to state any material fact necessary in
order to
make the statements therein, in light of the circumstances under
which they were
made, not misleading.
(c) a good standing certificate regarding the Company from the
Secretary of State of the State of Delaware, dated not earlier than
30 days
prior to the Closing Date;
(d) an officer's certificate, dated the Closing Date and signed
by
the secretary or an assistant secretary of the Company, to the
effect that each
individual who, as an officer or representative of the Company,
signed this
Agreement, the Mortgage Loan Purchase Agreements, the Pooling and
Servicing
Agreement or any other document or certificate delivered on or
before the
Closing Date in connection with the transactions contemplated
herein or in the
Mortgage Loan Purchase Agreements or in the Pooling and Servicing
Agreement, was
at the respective times of such signing and delivery, and is as of
the Closing
Date, duly elected or appointed, qualified and acting as such
officer or
representative, and the signatures of such persons appearing on
such documents
and certificates are their genuine signatures. Such officer's
certificate shall
be accompanied by true and complete copies (certified as such by
the secretary
or an assistant secretary of the Company) of the organizational
documents of the
Company, as in effect on the Closing Date, and of the resolutions
of the Company
and any required shareholder consent relating to the transactions
contemplated
in this Agreement, the Mortgage Loan Purchase Agreements and/or the
Pooling and
Servicing Agreement.
(e) The Underwriters shall have received from Cadwalader,
Wickersham
& Taft LLP, counsel for the Company, a favorable opinion, dated
the Closing
Date, that is satisfactory in form and substance to counsel for
the
Underwriters.
(f) The Underwriters shall have received from in-house counsel
for
the Company, a favorable opinion, dated the Closing Date, that is
satisfactory
in form and substance to counsel for the Underwriters.
Such opinion (a) may express counsel's reliance as to factual
matters on certificates of government and agency officials and
the
representations and warranties made by, and on certificates or
other documents
furnished by officers of, the parties to this Agreement, the
Mortgage Loan
Purchase Agreements and the Pooling and Servicing Agreement and (b)
may be
qualified as an opinion only on the law of the State of New York,
the General
Corporation Law of the State of Delaware and the federal law of the
United
States of America.
(g) The Underwriters shall have received from counsel for each
of
the Master Servicer, the Special Servicer and the Trustee a
favorable opinion,
dated the Closing Date, with respect to such matters as the
Underwriters shall
have reasonably requested and in form and substance satisfactory to
counsel for
the Underwriters, which will include an opinion as to the
compliance of the
disclosure with respect to each such party with the requirements of
Regulation
AB and that such disclosure does not contain an untrue statement of
any material
fact or omit to state a material fact necessary in order to make
the statements
therein (in the case of any item comprising the Time of Sale
Information, when
read in connection with the other items comprising the Time of Sale
Information
delivered to investors in the Offered Certificates as of the
applicable Time of
Sale), in light of the circumstances under which they were made,
not misleading.
Any such opinions shall be dated the Closing Date and addressed to
the
Underwriters or accompanied by reliance letters to the Underwriters
or shall
state that the Underwriters may rely upon them.
(h) The Underwriters shall have received from Cadwalader,
Wickersham
& Taft LLP, counsel for the Underwriters, a favorable opinion,
dated the Closing
Date and satisfactory in form and substance to the
Underwriters.
(i) The Underwriters shall have received from
PricewaterhouseCoopers, certified public accountants, a letter
dated the Closing
Date and satisfactory in form and substance to the Underwriters and
counsel for
the Underwriters stating in effect that using the assumptions and
methodology
used by the Company, all of which shall be described in such
letter, they have
recalculated such numbers and percentages set forth in the
Preliminary FWP, the
Revised FWPs and the Prospectus as the Underwriters may reasonably
request and
as are agreed to by PricewaterhouseCoopers, compared the results of
their
calculations to the corresponding items in the Preliminary FWP, the
Revised FWPs
and the Prospectus, and found each such number and percentage set
forth in the
Preliminary FWP, the Revised FWPs and the Prospectus to be in
agreement with the
results of such calculations.
(j) The Offered Certificates listed on Schedule I hereto shall
have
been rated as indicated on such Schedule I by the rating agency or
agencies
indicated.
(k) The Underwriters shall have received from counsel for each
Loan
Seller a favorable opinion, dated the Closing Date, in form and
substance
satisfactory to counsel for the Underwriters.
(l) All proceedings in connection with the transactions
contemplated
by this Agreement, and all documents incident hereto and thereto,
shall be
satisfactory in form and substance to the Underwriters and counsel
for the
Underwriters, and the Underwriters and counsel for the Underwriters
shall have
received such additional information, opinions, certificates and
documents as
they may reasonably request.
If any of the conditions specified in this Section 6 shall not
have
been fulfilled in all material respects when and as provided by
this Agreement,
or if any of the opinions and certificates mentioned above or
elsewhere in this
Agreement shall not be in all material respects reasonably
satisfactory in form
and substance to the Underwriters and counsel for the Underwriters,
this
Agreement and all obligations of the Underwriters hereunder may be
canceled on,
or at any time prior to, the Closing Date by the Underwriters.
Notice of such
cancellation shall be given to the Company in writing, by telephone
or by either
telegraph or telecopier confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of any
Offered Certificates provided for herein is not consummated because
any
condition to the obligations of the Underwriters set forth in
Section 6 hereof
is not satisfied or because of any refusal, inability or failure on
the part of
the Company to perform any agreement herein or comply with any
provision hereof
other than by reason of a default by any of the Underwriters, the
Company will
reimburse the Underwriters severally upon demand for all
out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall
have been
incurred by them in connection with the proposed purchase and sale
of such
Offered Certificates.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
Underwriter,
its officers and directors, and each person, if any, who controls
such
Underwriter within the meaning of the Act or the Securities
Exchange Act of
1934, as amended (the "Exchange Act") against any and all losses,
claims,
damages, costs, expenses or liabilities, joint or several, to which
any such
indemnified party may become subject, under the Act, the Exchange
Act or other
federal or state statutory law or regulation, at common law or
otherwise,
insofar as such losses, claims, damages, costs, expenses or
liabilities (or
actions in respect thereof) arise out of or are based upon (i) any
untrue
statement or alleged untrue statement of a material fact contained
in any part
of the Registration Statement when such part became effective, the
Prospectus,
the Diskette (as defined below) or any revision or amendment
thereof or
supplement thereto, or the omission or alleged omission to state
therein a
material fact required to be stated therein or necessary in order
to make the
statements therein, in light of the circumstances under which they
were made,
not misleading or (ii) any untrue statement or alleged untrue
statement of any
material fact contained in (x) any Issuer Free Writing Prospectus
(as defined in
Section 9(e)(i) hereof) or (y) any "issuer information" (as defined
in Rule
433(h) under the Act) ("Issuer Information") or information
concerning the
Mortgage Loans provided to the Underwriters by the Company (solely
to the extent
such information is not Loan Seller Information) contained in (1)
any
Underwriter Free Writing Prospectus (as defined in Section 9(a)
hereof) prepared
by or on behalf of such Underwriter, or (2) any Free Writing
Prospectus that is
required to be filed pursuant to Section 9(e)(iii), Section
9(e)(iv) or Section
9(h) hereof (clauses (x) and (y) collectively, the "Issuer
Disclosure
Materials"), or the omission or all
