Underwriting Agreement (2006)Full Document 

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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 2 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
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