Exhibit 1.1
MERRILL LYNCH MORTGAGE TRUST 2005-MCP1
Commercial Mortgage Pass-Through Certificates, Series 2005-MCP1
Class A-1, Class A-2,
Class A-3, Class A-SB, Class A-4, Class A-1A,
Class AM, Class AJ, Class B, Class C, Class D and Class XP
Underwriting Agreement
June 21, 2005
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representative of the several
Underwriters listed on Schedule I hereto
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center 250 Vesey Street, 15th Floor
New York, New York 10080
Ladies and Gentlemen:
Merrill
Lynch Mortgage Investors, Inc., a Delaware corporation (the
"Depositor"), proposes to sell to the several Underwriters listed
on Schedule
I (the "Underwriters"), for whom Merrill Lynch, Pierce, Fenner
& Smith
Incorporated is acting as representative (the "Representative"),
the principal
amount or notional amount, as the case may be, of Commercial
Mortgage
Pass-Through Certificates, Series 2005-MCP1, Classes A-1, A-2, A-3,
A-SB, A-4,
A-1A, AM, AJ, B, C, D and XP (the "Offered Certificates") as set
forth in
Schedule I. Merrill Lynch, Pierce, Fenner & Smith Incorporated
and Countrywide
Securities Corporation are acting as joint bookrunning managers
with respect
to the offering of the Offered Certificates (in such capacity, the
"Lead
Underwriters") in the following manner: Countrywide Securities
Corporation is
acting as sole bookrunning manager with respect to 42% of the Class
A-3
Certificates, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated is acting
as sole bookrunning manager with respect to the remainder of the
Class A-3
Certificates and all other classes of Offered Certificates. PNC
Capital
Markets, Inc. and Wachovia Capital Markets, LLC will act as
co-managers. The
Offered Certificates, together with the Commercial Mortgage
Pass-Through
Certificates, Series 2005-MCP1, Classes E, F, G, H, J, K, L, M, N,
P, Q, XC,
Z, R-I and R-II (the "Private Certificates") are referred to herein
as the
"Certificates." The Certificates will represent beneficial
interests in, among
other things, a pool of mortgage loans described in the Prospectus
referred to
below (the "Mortgage Loans") and certain moneys received under each
Mortgage
Loan after the related due date for such Mortgage Loan in June 2005
(or, with
respect to those Mortgage Loans, if any, that were originated in
May or June
2005 and have their first payment date in July 2005, June 1, 2005,
or, with
respect to those Mortgage Loans, if any, that were originated in
June 2005 and
have their first due date in August 2005, the date of origination)
(in any
case, the "Cut-off Date"). The Certificates will be issued pursuant
to the
provisions of a Pooling and Servicing Agreement to be dated as of
June 1, 2005
(the "Pooling and Servicing Agreement"), between the Depositor,
Midland Loan
Services, Inc., as master servicer (in such capacity, the "Master
Servicer")
and as special servicer (in such capacity, the
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"Special Servicer"), and Wells Fargo Bank, N.A., as trustee (the
"Trustee").
The
Depositor hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Offered
Certificates, as
follows:
1.
Registration Statement. The Depositor has prepared and filed with
the
Securities and Exchange Commission (the "Commission"), in
accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and
regulations of the Commission thereunder (collectively, the
"Securities Act"),
a registration statement on Form S-3 (No. 333-116820), including a
prospectus,
relating to the Offered Certificates. The registration statement as
amended at
the time when it became effective, or, if a post-effective
amendment is filed
with respect thereto, as amended by such post-effective amendment
at the time
of its effectiveness, is referred to in this Agreement as the
"Registration
Statement". The Depositor also has filed with, or proposes to file
with, the
Commission pursuant to Rule 424 under the Securities Act a
prospectus
supplement specifically relating to the Offered Certificates (the
"Prospectus
Supplement"). The related prospectus covering the Offered
Certificates in the
form first used to confirm sales of the Offered Certificates is
hereinafter
referred to as the "Basic Prospectus", and the Basic Prospectus
as
supplemented by the Prospectus Supplement in the form first used to
confirm
sales of the Offered Certificates is hereinafter referred to as
the
"Prospectus". Any reference in this Agreement to the Registration
Statement,
any preliminary prospectus used in connection with the offering of
the Offered
Certificates (the "Preliminary Prospectus") or the Prospectus shall
be deemed
to refer to and include any exhibits thereto and the documents
incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as
of the effective date of the Registration Statement or the date of
such
Preliminary Prospectus or the Prospectus, as the case may be, and
any
reference to "amend," "amendment" or "supplement" with respect to
the
Registration Statement, any Preliminary Prospectus or the
Prospectus shall be
deemed to refer to and include any documents filed as of the
Closing Date (as
defined below) under the Securities Exchange Act of 1934, as
amended, and the
rules and regulations of the Commission thereunder (collectively,
the
"Exchange Act") that are deemed to be incorporated by reference
therein.
When used
in this Agreement, "Basic Documents" shall mean (i) the
Pooling and Servicing Agreement, (ii) the Certificates, (iii) the
Mortgage
Loan Purchase Agreement, dated as of June 21, 2005, between Merrill
Lynch
Mortgage Lending, Inc. ("Merrill") and the Depositor (the "Merrill
Mortgage
Loan Purchase Agreement"), (iv) the Mortgage Loan Purchase
Agreement, dated as
of June 21, 2005, between Countrywide Commercial Real Estate
Finance, Inc.
("Countrywide") and the Depositor (the "Countrywide Mortgage Loan
Purchase
Agreement"), (v) the Mortgage Loan Purchase Agreement, dated as of
June 21,
2005, between PNC Bank, National Association ("PNC Bank") and the
Depositor
(the "PNC Bank Mortgage Loan Purchase Agreement"), and (vi) any
other
contract, agreement or instrument which is or is to be entered into
by the
Depositor on the Closing Date or otherwise in connection with any
of the
foregoing or this Agreement. Merrill, Countrywide and PNC Bank
are
collectively referred to herein as the "Sellers". To the extent not
defined
herein, capitalized terms used herein have the meanings assigned to
such terms
in the Pooling and Servicing Agreement.
2.
Purchase of the Offered Certificates by the Underwriters. (a)
The
Depositor agrees to sell the Offered Certificates to the several
Underwriters
as provided in this Agreement,
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and each Underwriter, on the basis of the representations,
warranties and
agreements set forth herein and subject to the conditions set forth
herein,
agrees, severally and not jointly, to purchase from the Depositor,
the
respective principal amount or notional amount, as the case may be,
of each
class of the Offered Certificates set forth opposite such
Underwriter's name
in Schedule I at the Purchase Price set forth in Schedule I, plus,
if
applicable, accrued interest on the actual principal amount or
notional amount
thereof at the applicable Pass-Through Rate from June 1, 2005 to
the Closing
Date (as defined below). The Depositor will not be obligated to
deliver any of
the Offered Certificates except upon payment for all the Offered
Certificates
to be purchased as provided herein.
(b) The Depositor understands that the Underwriters intend to
make a public offering of their respective portions of the
Offered
Certificates as soon after the effectiveness of this Agreement as
in the
judgment of the Lead Underwriters is advisable, and initially to
offer the
Offered Certificates on the terms set forth in the Prospectus.
(c) Merrill Lynch, Pierce, Fenner & Smith Incorporated
represents
and warrants to the Depositor that it has the authority to act
as
Representative of the Underwriters and to bind the Underwriters
hereto.
(d) Payment for and delivery of the Offered Certificates will
be
made at the offices of Sidley Austin Brown & Wood LLP, 787
Seventh Avenue, New
York, New York 10019, at 10:00 A.M., New York City time, on June
29, 2005, or
at such other time on the same or such other date, not later than
the fifth
business day thereafter, as the Lead Underwriters and the Depositor
may agree
upon in writing. The time and date of such payment and delivery is
referred to
herein as the "Closing Date".
(e) Payment for the Offered Certificates shall be made by wire
transfer in immediately available funds to the account(s) specified
by the
Depositor to the Lead Underwriters against delivery to the nominee
of The
Depository Trust Company, for the account of the Underwriters, of
one or more
global notes representing the Offered Certificates (collectively,
the "Global
Notes"), with any transfer taxes payable in connection with the
sale of the
Offered Certificates duly paid by the Depositor. The Global Notes
will be made
available for inspection by the Lead Underwriters not later than
1:00 P.M.,
New York City time, on the business day prior to the Closing
Date.
3.
Representations and Warranties of the Depositor. The Depositor
represents and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration
Statement has been declared effective by the Commission under the
Securities
Act; no order suspending the effectiveness of the Registration
Statement has
been issued by the Commission and no proceeding for that purpose
has been
initiated or, to the best knowledge of the Depositor, threatened by
the
Commission; and the Registration Statement and any amendment
thereto, at the
time the Registration Statement became effective, as of the date of
the
Prospectus Supplement and as of the date that any such amendment to
the
Registration Statement became effective, did and will (during the
Prospectus
Delivery Period (as defined below)) comply in all material respects
with the
Securities Act, and did not and will not contain any untrue
statement
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of a material fact or omit to state a material fact required to be
stated
therein or necessary in order to make the statements therein not
misleading;
and as of the date of the Prospectus Supplement, as of the date of
any
amendment or other supplement to the Prospectus and on the Closing
Date, the
Prospectus did and will comply in all material respects with the
Securities
Act and did not and will not contain any untrue statement of a
material fact
or omit to state a material fact necessary in order to make the
statements
therein, in the light of the circumstances under which they were
made, not
misleading; provided that the Depositor makes no representation and
warranty
with respect to (i) any statements or omissions made in reliance
upon and in
conformity with information relating to any Underwriter furnished
to the
Depositor in writing by such Underwriter through the Lead
Underwriters
expressly for use in the Registration Statement and the Prospectus
and any
amendment or supplement thereto or (ii) the Sellers' Information
(as defined
in Section 6(a)) or (iii) the 8-K Information (as defined in
Section 7(a));
the conditions to the use by the Depositor of a registration
statement on Form
S-3 under the Securities Act, as set forth in the General
Instructions to Form
S-3, have been satisfied with respect to the Registration Statement
and the
Prospectus.
(b) No Material Adverse Change. Other than as set forth or
contemplated in the Prospectus, since the date as of which
information is
given in the Prospectus, there has not been any material adverse
change or any
development involving a prospective material adverse change, in or
affecting
the business, prospects, management, financial position,
stockholders' equity
or results of operations of the Depositor.
(c) Organization and Good Standing. The Depositor has been duly
organized and is a validly existing organization in good standing
under the
laws of its jurisdiction of organization, is duly qualified to do
business and
is in good standing as a foreign entity in each jurisdiction in
which the
conduct of its business requires such qualification, and has all
power and
authority necessary to enter into and perform its obligations under
this
Agreement, the Pooling and Servicing Agreement and the Mortgage
Loan Purchase
Agreements and to own or hold its properties and to conduct the
business in
which it is engaged, except where the failure to be so qualified or
have such
power or authority would not, individually or in the aggregate,
have a
material adverse effect on the transactions contemplated herein or
in the
Basic Documents (a "Material Adverse Effect").
(d) Due Authorization. The Depositor has full right, power and
authority to execute and deliver this Agreement, the Certificates,
the Pooling
and Servicing Agreement and the other Basic Documents and to
perform its
obligations hereunder and thereunder; and all action (corporate and
other)
required to be taken for the due and proper authorization,
execution and
delivery of this Agreement and each of the Basic Documents and
the
consummation of the transactions contemplated hereby and thereby
has been duly
and validly taken.
(e) The Pooling and Servicing Agreement. The Pooling and
Servicing
Agreement has been duly authorized by the Depositor and, when duly
executed
and delivered in accordance with its terms by each of the parties
thereto,
will constitute a valid and legally binding agreement of the
Depositor
enforceable against the Depositor in accordance with its terms,
except as
enforceability may be limited by applicable bankruptcy, insolvency
or similar
laws affecting the enforcement of creditors' rights generally or by
equitable
principles relating to enforceability (collectively, the
"Enforceability
Exceptions").
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(f)
The Certificates. The Offered Certificates have been duly
authorized and, when duly executed, authenticated, issued and
delivered as
provided in the Pooling and Servicing Agreement and paid for as
provided
herein, will be duly and validly issued and outstanding and will be
entitled
to the benefits and security afforded by the Pooling and Servicing
Agreement.
(g) Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by the Depositor and, when duly
executed
and delivered in accordance with its terms by or on behalf of each
of the
other parties hereto, will constitute a valid and legally binding
agreement of
the Depositor enforceable against the Depositor in accordance with
its terms,
subject to the Enforceability Exceptions.
(h) Basic Documents. Each of the Basic Documents to which the
Depositor is a party has been duly authorized and, when duly
executed and
delivered in accordance with its terms by each of the parties
thereto, will
constitute a valid and legally binding agreement of the Depositor
enforceable
against the Depositor in accordance with its terms, subject to
the
Enforceability Exceptions.
(i) Descriptions of Basic Documents. Each Basic Document
conforms
in all material respects to the description thereof contained in
the
Registration Statement and the Prospectus.
(j) No Violation or Default. The Depositor is not (i) in
violation
of its charter, by-laws or similar organizational documents; (ii)
in default,
and no event has occurred that, with notice or lapse of time or
both, would
constitute such a default, in the due performance or observance of
any term,
covenant or condition contained in any indenture, mortgage, deed of
trust,
loan agreement or other agreement or instrument to which the
Depositor is a
party or by which the Depositor is bound or to which any of the
property or
assets of the Depositor is subject; or (iii) in violation of any
law or
statute or any judgment, order or regulation of any court or
governmental
agency or body having jurisdiction over the Depositor, or any of
its
properties ("Governmental Authority"), except, in the case of
clauses (ii) and
(iii) above, for any such default or violation that would not,
individually or
in the aggregate, have a Material Adverse Effect.
(k) No Conflicts with Existing Instruments. The execution,
delivery and performance by the Depositor of this Agreement and
each of the
Basic Documents, the issuance and sale of the Certificates and
compliance by
the Depositor with the terms hereof and thereof and the
consummation of the
transactions contemplated by this Agreement and the Basic Documents
will not
(i) conflict with or result in a breach or violation of any of the
terms or
provisions of, or constitute a default under, or result in the
creation or
imposition of any lien, charge or encumbrance upon any property or
assets of
the Depositor pursuant to, any indenture, mortgage, deed of trust,
loan
agreement or other agreement or instrument to which the Depositor
is a party
or by which the Depositor is bound or to which any of the property
or assets
of the Depositor is subject; (ii) result in any violation of the
provisions of
the charter, by-laws or similar organizational documents of the
Depositor; or
(iii) result in the violation of any law or statute or any
judgment, order or
regulation of any Governmental Authority, except, in the case
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of clauses (i) and (iii) above, for any such conflict, breach or
violation
that would not, individually or in the aggregate, have a Material
Adverse
Effect.
(l) No Consents Required. No consent, approval, authorization,
order, registration or qualification of or with any Governmental
Authority is
required for the execution, delivery and performance by the
Depositor of this
Agreement, each of the Basic Documents, the issuance and sale of
the
Certificates and compliance by the Depositor with the terms hereof
and thereof
and the consummation of the transactions contemplated by this
Agreement and
the Basic Documents, except for such consents, approvals,
authorizations,
orders and registrations or qualifications as have already been
obtained or as
of the Closing Date will have been obtained or such as may be
required under
applicable state securities laws in connection with the purchase
and
distribution of the Offered Certificates by the Underwriters.
(m) Legal Proceedings. Except as described in the Prospectus,
there are no legal, governmental or regulatory investigations,
actions, suits
or proceedings pending to which the Depositor is or may be a party
or to which
any property of the Depositor is or may be the subject that,
individually or
in the aggregate, if determined adversely to the Depositor, could
reasonably
be expected to have a Material Adverse Effect; to the best
knowledge of the
Depositor, no such investigations, actions, suits or proceedings
are
threatened or contemplated by any Governmental Authority or
threatened by
others; and there are no statutes, regulations or contracts,
indentures or
other documents that are required under the Securities Act to be
filed as
exhibits to the Registration Statement or described in the
Registration
Statement or the Prospectus and that are not so filed or
described.
(n) Independent Accountants. Ernst & Young llp are
independent
public accountants with respect to the Depositor as required by the
Securities
Act.
(o) Title to Mortgage Loans. At the time of the execution of
the
Pooling and Servicing Agreement, the Depositor (i) will convey to
the Trustee,
or cause to be conveyed to the Trustee, all of the Depositor's
right, title
and interest in and to the Mortgage Loans being transferred to the
Trustee
pursuant to the Pooling and Servicing Agreement, free and clear of
Liens
granted by or imposed upon the Depositor, and (ii) will not have
assigned to
any other person any of its right, title or interest in the
Mortgage Loans or
in the Pooling and Servicing Agreement or the Certificates. Upon
execution and
delivery of the Pooling and Servicing Agreement by the Trustee, the
Trustee
will have acquired ownership of all of the Depositor's right, title
and
interest in and to the Mortgage Loans except to the extent
disclosed in the
Prospectus, and upon delivery to the Underwriters of the Offered
Certificates
pursuant hereto, each Underwriter will have good title to the
Offered
Certificates purchased by such Underwriter, in each case free of
Liens granted
by or imposed upon the Depositor.
(p)
Investment Company Act. Neither the Depositor nor the trust
fund created under the Pooling and Servicing Agreement (the "Trust
Fund") is
(and, after giving effect to the offering and sale of the
Certificates and the
application of the proceeds thereof as described in the Prospectus,
neither
the Depositor nor the Trust Fund will be) an "investment company"
or an entity
"controlled" by an "investment company" within the meaning of the
Investment
Company Act of 1940, as amended, and the rules and regulations of
the
Commission thereunder (collectively, "Investment Company Act").
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(q) Representations in Basic Documents. The representations and
warranties of the Depositor contained in the Basic Documents are
true and
correct in all material respects.
(r) Taxes. Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement, the
Pooling and
Servicing Agreement, the other Basic Documents and the delivery and
sale of
the Certificates (other than such federal, state and local taxes as
may be
payable on the income or gain recognized therefrom) have been or
will be paid
at or prior to the Closing Date.
(s) Accounting Treatment. Upon the sale to unaffiliated third
parties of Certificates representing at least 10% of the total fair
value of
all of the Certificates, the Depositor will, under generally
accepted
accounting principles, report the transfer of the Mortgage Loans to
the
Trustee in exchange for the Certificates and the sale of the
Offered
Certificates to the Underwriters pursuant to this Agreement as a
sale of the
interest in the Mortgage Loans evidenced by such Offered
Certificates.
(t) Solvency. The Depositor will be solvent at all relevant
times
prior to, and will not be rendered insolvent by, the sale of the
Offered
Certificates to the Underwriters.
(u) No Intention to Delay or Defraud. The Depositor is not
selling
the Offered Certificates to the Underwriters with any intent to
hinder, delay
or defraud any of the creditors of the Depositor.
4. Further
Agreements of the Depositor. The Depositor covenants and
agrees with each Underwriter that:
(a) Filing of Prospectus. The Depositor will file the final
Prospectus with the Commission within the time periods specified by
Rule
424(b) under the Securities Act; and the Depositor will furnish
copies of the
Prospectus to the Underwriters in New York City prior to 10:00
A.M., New York
City time, at least three days prior to the Closing Date in such
quantities as
the Lead Underwriters may reasonably request.
(b) Delivery of Copies. The Depositor will deliver (i) to the
Lead
Underwriters, one copy of the Registration Statement as originally
filed and
each amendment thereto, in each case including all exhibits and
consents filed
therewith, and (ii) to each Underwriter (A) a conformed copy of
the
Registration Statement as originally filed and each amendment
thereto, in each
case including all exhibits and consents filed therewith and (B)
during the
Prospectus Delivery Period, as many copies of the Prospectus
(including all
amendments and supplements thereto) as the Lead Underwriters may
reasonably
request. As used herein, the term "Prospectus Delivery Period"
means such
period of time after the first date of the public offering of the
Offered
Certificates as in the opinion of counsel for the Underwriters a
prospectus
relating to the Offered Certificates is required by law to be
delivered in
connection with sales of the Offered Certificates by any
Underwriter or
dealer.
(c) Amendments or Supplements. Before filing any amendment or
supplement to the Registration Statement or the Prospectus, whether
before or
after the time that the Registration Statement becomes effective,
the
Depositor will furnish to the Lead Underwriters and counsel for
the
Underwriters a copy of the proposed amendment or supplement for
review
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and will not file any such proposed amendment or supplement to
which the Lead
Underwriters reasonably object.
(d) Notice to the Lead Underwriters. The Depositor will advise
the
Lead Underwriters promptly, and confirm such advice in writing, (i)
when any
amendment to the Registration Statement has been filed or becomes
effective;
(ii) when any supplement to the Prospectus or any amendment to the
Prospectus
has been filed; (iii) of any request by the Commission for any
amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or
the receipt of any comments from the Commission relating to the
Registration
Statement or any other request by the Commission for any
additional
information; (iv) of the issuance by the Commission of any order
suspending
the effectiveness of the Registration Statement or preventing or
suspending
the use of any Preliminary Prospectus or the Prospectus or the
initiation or
threatening of any proceeding for that purpose; (v) of the
occurrence of any
event within the Prospectus Delivery Period as a result of which
the
Prospectus as then amended or supplemented would include any untrue
statement
of a material fact or omit to state a material fact necessary in
order to make
the statements therein, in the light of the circumstances existing
when the
Prospectus is delivered to a purchaser, not misleading, and (vi) of
the
receipt by the Depositor of any notice with respect to any
suspension of the
qualification of the Offered Certificates for offer and sale in
any
jurisdiction or the initiation or threatening of any proceeding for
such
purpose, and the Depositor will use every reasonable effort to
prevent the
issuance of any such order suspending the effectiveness of the
Registration
Statement, preventing or suspending the use of any Preliminary
Prospectus or
the Prospectus or suspending any such qualification of the
Offered
Certificates and, if issued, will use every reasonable effort to
obtain as
soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. If during the
Prospectus
Delivery Period (i) any event shall occur or condition shall exist
as a result
of which it is necessary to amend or supplement the Prospectus in
order to
make the statements therein, in the light of the circumstances
existing when
the Prospectus is delivered to a purchaser, not misleading, or (ii)
it is
necessary to amend or supplement the Prospectus to comply with law,
the
Depositor will immediately notify the Underwriters thereof and
forthwith
prepare and, subject to paragraph (c) above, file with the
Commission and
furnish to the Underwriters and to such dealers as the Lead
Underwriters may
designate, such amendments or supplements to the Prospectus as may
be
necessary so that the statements in the Prospectus as so amended
or
supplemented will not, in the light of the circumstances existing
when the
Prospectus is delivered to a purchaser, be misleading or so that
the
Prospectus will comply with law.
(f) Blue Sky Compliance. The Depositor will use reasonable
efforts
in cooperation with the Underwriters to qualify the Offered
Certificates for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as
the Lead Underwriters shall reasonably request and will continue
such
qualifications in effect so long as may be reasonably required
for
distribution of the Offered Certificates, provided that the
Depositor shall
not be required to (i) qualify as a foreign corporation or other
entity or as
a dealer in securities in any such jurisdiction where it would not
otherwise
be required to so qualify; (ii) file any general consent to service
of process
in such jurisdiction; or (iii) subject itself to taxation in any
such
jurisdiction if it is not so subject.
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(g) Earning Statement. The Depositor will make generally
available
to its security holders as soon as practicable an earning statement
that
satisfies the provisions of Section 11(a) of the Securities Act and
Rule 158
of the Commission promulgated thereunder covering a period of at
least twelve
months beginning with the first fiscal quarter of the Depositor
occurring
after the "effective date" (as defined in Rule 158) of the
Registration
Statement.
(h) Copies of Reports. So long as the Offered Certificates are
outstanding, the Depositor will furnish, or cause to be furnished,
to each
Underwriter (i) copies of each certificate, the annual statements
of
compliance and the annual independent certified public accountant's
servicing
reports furnished to the Trustee pursuant to the Pooling and
Servicing
Agreement by first class mail as soon as practicable after such
statements and
reports are furnished to the Trustee; (ii) copies of each amendment
to any of
the Basic Documents; and (iii) copies of all reports or other
communications
(financial or other) furnished to holders of the Offered
Certificates, and
copies of any reports and financial statements furnished to or
filed with the
Commission, any governmental or regulatory authority or any
national
securities exchange.
(i) Use of Proceeds. The Depositor will apply the net proceeds
from the sale of the Offered Certificates as described in the
Registration
Statement and the Prospectus.
(j) Rating Agencies. To the extent, if any, that the ratings
provided with respect to the Offered Certificates by the Rating
Agencies are
conditional upon the furnishing of documents or the taking of any
other action
by the Depositor, the Depositor shall use its best efforts to
furnish such
documents and take any other such action.
(k) Exchange Act Filings. The Depositor will file or cause to
be
filed all documents and certifications required to be filed by the
Commission
pursuant to the Exchange Act within the time periods required by
the Exchange
Act and the rules and regulations thereunder.
5.
Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Offered Certificates on the Closing Date as
provided
herein is subject to the performance by the Depositor of its
obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective
amendment to the Registration Statement is required to be filed
under the
Securities Act, such post-effective amendment shall have become
effective, and
the Lead Underwriters shall have received notice thereof, not later
than 5:00
P.M., New York City time, on the date hereof, no order suspending
the
effectiveness of the Registration Statement shall be in effect, and
no
proceeding for such purpose shall be pending before or threatened
by the
Commission; the Prospectus shall have been timely filed with the
Commission
under the Securities Act and in accordance with Section 4(a)
hereof, and all
requests by the Commission for additional information shall have
been complied
with to the reasonable satisfaction of the Lead Underwriters.
(b) Representations and Warranties. The representations and
warranties of the Depositor contained herein shall be true and
correct on the
date hereof and on and as of the
9
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Closing Date; the statements of the Depositor and its
