ML-CFC COMMERCIAL MORTGAGE TRUST 2006-4,
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-4
UNDERWRITING AGREEMENT
December 1, 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 December 1, 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
8.845% of the Class B Certificates, and Merrill Lynch, Pierce,
Fenner & Smith
Incorporated is acting as sole bookrunning manager with respect to
the remainder
of the Class B Certificates and all other classes of Offered
Certificates. IXIS
Securities North America Inc., Deutsche Bank Securities Inc. and
PNC Capital
Markets LLC will act as co-managers with respect to all of the
Offered
Certificates and Credit Suisse Securities (USA) LLC will act as
co-manager with
respect to all of the Offered Certificates other than the Class A-M
and Class
A-J Certificates. 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 December 1,
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 December 1, 2006 (the "Countrywide
Mortgage Loan
Purchase Agreement") between the Depositor and Countrywide. Certain
of the
Mortgage Loans (the "IXIS Mortgage Loans") will be acquired by the
Depositor
from IXIS Real Estate Capital Inc. ("IXIS") pursuant to the
mortgage loan
purchase agreement, dated December 1, 2006 (the "IXIS Mortgage Loan
Purchase
Agreement") between the Depositor and IXIS. 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
December 1, 2006 (the "PNC Mortgage Loan Purchase Agreement")
between the
Depositor and PNC. Merrill, Countrywide, IXIS and PNC collectively
constitute
the "Mortgage Loan Sellers"; and the Merrill Mortgage Loan Purchase
Agreement,
the Countrywide Mortgage Loan Purchase Agreement, the IXIS 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 December 1, 2006 (the
"Pooling and
Servicing Agreement"), between the Depositor, as depositor, Wells
Fargo Bank,
National Association and Midland Loan Services, Inc., as master
servicers, LNR
Partners, Inc., 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 12:30 p.m. on December 1, 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 November 20, 2006 (the "First FWP") (the
cover page of
which is attached hereto as Annex A); the Depositor's prospectus
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dated September 13, 2006, relating to the Certificates and
previously filed as
part of the Registration Statement; the Depositor's Free Writing
Prospectus
dated November 28, 2006 (together with the First FWP, the "Offering
Prospectus")
(the cover page of which is attached hereto as Annex B), the
Preliminary
Structural and Collateral Term Sheet dated November 17, 2006
relating to the
Certificates, as modified and superseded by the Revised Preliminary
Structural
and Collateral Term Sheet dated November 28, 2006 (the first page
of 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 December 1,
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 December 1, 2006 (the "Trustee/Servicer Information"); and
provided,
further, that the Depositor makes no
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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 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
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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 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.
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(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,
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
6
(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 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
7
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 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 December 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
December 12,
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.
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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.
(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
9
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 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.
10
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 (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.
11
(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 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
12
Prospectus"), such Underwriter shall notify the Depositor of such
untrue statement or omission within one business day after
discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or omission
from the Defective Free Writing Prospectus (together with a
Corrected Issuer Free Writing Prospectus, a "Corrected Free
Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that
the prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of such
agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Certificates on the terms
described in the Corrected Free Writing Prospectus; and
(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
13
Section 21(1) of the Financial Services and Markets Act 2000 does
not apply to
the Depositor; and
(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
