EXHIBIT 1.1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC.
[SERIES]
UNDERWRITING AGREEMENT
[ DATE ]
[ADDRESS A]
[ADDRESS B]
Ladies and Gentlemen:
Bear Xxxxxxx Commercial Mortgage Securities Inc., a [ ] corporation (the
"Depositor"), proposes to cause the issuance of, and to sell to [ ]and [ ]
(together, the "Underwriters"), the Commercial Mortgage Pass-Through
Certificates identified in Schedule I hereto (the "Certificates") pursuant to
this Underwriting Agreement, dated [ ] (this "Agreement"), between the Depositor
and the Underwriters. The Certificates will evidence beneficial ownership
interests in a trust fund (the "Trust Fund") to be formed by the Depositor and
consisting primarily of a segregated pool (the "Mortgage Pool") of multifamily
and commercial mortgage loans (the "Mortgage Loans").
Certain of the Mortgage Loans (the
"[ ]") will be acquired by the Depositor from [ ] ("[ ]") pursuant to the
mortgage loan purchase agreement, dated [ ] between the Depositor and [ ].
Certain of the Mortgage Loans will be acquired by the Depositor from [ ]
pursuant to the mortgage loan purchase agreement, dated [ ] between the
Depositor and MSMC. Certain of the Mortgage Loans will be acquired by the
Depositor from [ ] pursuant to the mortgage loan purchase agreement, dated [ ],
between the Depositor and [ ]. Certain of the Mortgage Loans will be acquired by
the Depositor from [ ], pursuant to the mortgage loan purchase agreement, dated
[ ] between the Depositor and [ ]. [ ] collectively constitute the "Mortgage
Loan Sellers"; and the [ ] Mortgage Loan Purchase Agreement, the [ ] Mortgage
Loan Purchase Agreement, the [ ] Mortgage Loan Purchase Agreement and the [ ]
Mortgage Loan Purchase Agreement collectively constitute the "Mortgage Loan
Purchase Agreements."
The Trust is to be created and the Certificates are to be issued under a
pooling and servicing agreement, dated as of [ ] (the "Pooling and Servicing
Agreement"), between the Depositor, as depositor, [ ], as master servicer, [ ],
as
special servicer, [ ], as trustee and [ ], as paying agent and certificate
registrar.
Capitalized terms used herein, but not otherwise defined herein shall have
the meanings set forth in the Mortgage Loan Purchase Agreements.
The Depositor has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (No. [ ]) on Form S-3 for the
registration of the Certificates under the Securities Act of 1933, as amended
(the "1933 Act"), which registration statement has become effective. The
Depositor proposes to file with the Commission pursuant to Rule 424(b) under the
1933 Act a supplement to the form of prospectus included in such registration
statement relating to the Certificates and the plan of distribution thereof.
Such registration statement, including the exhibits thereto, and information
that is contained in the Prospectus (as defined below) and is deemed to be part
of and included in such registration statement as it may have been amended or
supplemented at the date of the Prospectus, is hereinafter referred to as the
"Registration Statement"; the prospectus first required to be filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
1933 Act, is hereinafter referred to as the "Base Prospectus"; such form of
supplement to the Base Prospectus relating to the Certificates, in the form
first required to be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to Rule 424(b) under the 1933 Act (including the Base Prospectus as so
supplemented) is hereinafter referred to as the "Prospectus Supplement"; and the
Base Prospectus and the Prospectus Supplement, together, are hereinafter
referred to as the "Prospectus".
At or prior to the time when sales to purchasers of the Certificates were
first made, which was approximately 1:30 p.m. on [ ] (the "Time of Sale"), the
Depositor had prepared the following information (collectively, the "Time of
Sale Information"): the Depositor's Free Writing Prospectus dated [ ] (the cover
page of which is attached hereto as Annex A) to accompany the Depositor's
Prospectus dated [ ], and the Depositor's Prospectus dated [ ], the Term Sheet
dated [ ], relating to the Certificates, each "free-writing prospectus" (as
defined pursuant to Rule 405 under the 1933 Act) (a "Free Writing Prospectus")
the first page of each of which is attached as Annex B hereto and the pricing
information annex attached hereto as Annex C. If, subsequent to the date of this
Agreement, the Depositor and the Underwriters determine that such information
included an untrue statement of material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and terminate their old
purchase contracts and enter into new purchase contracts with purchasers of the
Certificates, then "Time of Sale Information" will refer to the information
conveyed to purchasers at the time of entry into the first such new purchase
contract, including any information that corrects such material misstatements or
omissions ("Corrective Information") and "Time of Sale" will refer to the time
and date on which such new purchase contracts were entered into.
1. Representations and Warranties.
(a) The Depositor represents and warrants to the Underwriters as
follows:
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(i) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending or, to the Depositor's knowledge,
threatened by the Commission; the Registration Statement as of its effective
date or deemed effective date pursuant to Rule 430B under the 1933 Act (the
"Effective Date"), and the Prospectus, as of the date of the Prospectus
Supplement, complied in all material respects with the applicable requirements
of the 1933 Act and the rules and regulations thereunder (the "1933 Act
Regulations"); and the information in the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and the information in the
Prospectus, as of the date of the Prospectus Supplement, did not, and as of the
Closing Date (as hereinafter defined) will not, contain an untrue statement of a
material fact and did not and will not omit to state a material fact necessary
in order to make the information therein, in the light of the circumstances
under which they were made, not misleading, provided, however, that the
Depositor makes no representations, warranties or agreements as to (A) the
information contained in the Prospectus or any revision or amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing to the Depositor by any Underwriter on behalf of itself or the other
Underwriters specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto (the
"Underwriter Information"), or (B) any information contained in or omitted from
the portions of the Prospectus Supplement for which the Mortgage Loan Sellers
are obligated to indemnify the Underwriters under the Indemnification
Agreements, each dated as of [ ], between the respective Mortgage Loan Seller,
the Depositor and the Underwriters (the "Mortgage Loan Seller Information") and
provided, further, that the Depositor makes no representations or warranties
regarding untrue statements or omissions in the portions of the Prospectus
Supplement under the heading "Yield, Prepayment and Maturity Considerations"
that arise out of or are based upon untrue statements or omissions in the
Mortgage Loan Seller Information. The Underwriter Information shall consist of
the second, fourth and ninth paragraphs of the section of the Prospectus
Supplement entitled "Plan of Distribution" and the first two sentences of the
last paragraph on the cover page of the Prospectus Supplement.
(ii) The Time of Sale Information, at the Time of Sale, did not, and at
the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that the Depositor makes no representation and warranty with respect to
(A) any statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (B) any Mortgage Loan Seller Information contained in
or omitted from such Time of Sale Information. The parties acknowledge that none
of the Underwriters has furnished any Underwriter Information to the Depositor
expressly for use in the Time of Sale Information.
(iii) Other than the Prospectus, the Depositor (including its agents
and representatives other than the Underwriters in their capacity as such) has
not made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the 0000 Xxx) that constitutes an offer to sell or
solicitation of an offer to buy the Certificates other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act or
Rule
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134 under the 1933 Act, (ii) the Time of Sale Information, and (iii) each
other written communication of the Depositor or its agents and representatives
approved by the Underwriters either in writing in advance or in any other manner
mutually agreed to by the Underwriters and the Depositor (each such
communication referred to in clause (ii) and this clause (iii) constituting an
"issuer free writing prospectus", as defined in Rule 433(h) under the 1933 Act,
being referred to as an "Issuer Free Writing Prospectus"). Each such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will comply, in
all material respects with the 1933 Act and the rules and regulations
promulgated thereunder, has been filed or will be filed in accordance with
Section 4 (to the extent required thereby) and did not at the Time of Sale, and
at the Closing Date will not, contain any untrue statements of a material fact
or (when read in conjunction with the other Time of Sale Information) omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Depositor makes no representation and warranty with respect to (i) any
statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (ii) any Mortgage Loan Seller Information contained
in or omitted from any Issuer Free Writing Prospectus. The parties acknowledge
that none of the Underwriters has furnished any Underwriter Information to the
Depositor expressly for use in any Issuer Free Writing Prospectus.
(iv) The Depositor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor and the consummation of the
transactions contemplated herein and therein by the Depositor and compliance by
the Depositor with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and will not (A) contravene any
provision of the certificate of incorporation or by-laws of the Depositor or
applicable law or (B) conflict with or constitute a breach of or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Depositor pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Depositor
is a party or by which it may be bound or to which any of the property or assets
of the Depositor is subject, which conflict, breach, default, lien, charge or
encumbrance is reasonably likely to materially and adversely affect the
Depositor's ability to perform its obligations under this Agreement or the
Pooling and Servicing Agreement.
(vi) The Certificates have been duly authorized for issuance and sale
(or will have been so authorized prior to the issuance thereof) pursuant to this
Agreement and the Pooling and Servicing Agreement. When issued, authenticated
and delivered pursuant to the provisions of this Agreement and of the Pooling
and Servicing Agreement against payment of the consideration therefor in
accordance with this Agreement, the Certificates will be duly and validly issued
and outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement, except as the enforceability thereof may be limited by the
effect of (A) bankruptcy, insolvency, reorganization, receivership, moratorium
or other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity, whether
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enforcement is sought in a proceeding in equity or at law. The Certificates and
the Pooling and Servicing Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus.
(vii) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering,
issuance or sale of the Certificates hereunder, except such as have been, or as
of the Closing Date will have been, obtained or such as may otherwise be
required under applicable state securities laws in connection with the purchase
and offer and sale of the Certificates by the Underwriters and any recordation
of the respective assignments of the Mortgage Loans to the Trustee pursuant to
the Pooling and Servicing Agreement that have not yet been completed.
(viii) This Agreement has been, and as of the Closing Date the Pooling
and Servicing Agreement will be, duly authorized, executed and delivered by the
Depositor. This Agreement constitutes, and as of the Closing Date the Pooling
and Servicing Agreement will constitute, a legal, valid and binding agreement
enforceable against the Depositor in accordance with its terms, except as such
enforceability may be limited by the effect of (A) bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws affecting the
enforcement of the rights of creditors generally, (B) general principles of
equity, whether enforcement is sought in a proceeding in equity or at law, and
(C) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport or are construed to provide
indemnification from securities law liabilities.
(ix) At the time of the execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee, or cause to
be conveyed to the Trustee, all of the Depositor's right, title and interest in
and to the Mortgage Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively "Liens")
granted by or imposed upon the Depositor, (B) will not have assigned to any
other person any of its right, title or interest in the Mortgage Loans or in the
Pooling and Servicing Agreement or the Certificates, and (C) will have the power
and authority to transfer or cause to be transferred its right, title and
interest in the Mortgage Loans to the Trustee and to sell the Certificates to
the Underwriters. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired ownership of all of the
Depositor's right, title and interest in and to the Mortgage Loans except to the
extent disclosed in the Prospectus, and upon delivery to the Underwriters of the
Certificates pursuant hereto, each Underwriter will have good title to the
Certificates purchased by such Underwriter, in each case free of Liens granted
by or imposed upon the Depositor.
(x) The Depositor is not, and the issuance and sale of the Certificates
in the manner contemplated by the Prospectus will not cause the Depositor or the
Trust Fund to be, subject to registration or regulation as an "investment
company" under the Investment Company Act of 1940, as amended (the "1940 Act").
(xi) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Depositor will report the transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and the sale of
the Certificates to the Underwriters pursuant to
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this Agreement as a sale of the interest in the Mortgage Loans evidenced by the
Certificates. The consideration received by the Depositor upon the sale of the
Certificates to the Underwriters will constitute at least reasonably equivalent
value and fair consideration for the Certificates. The Depositor will be solvent
at all relevant times prior to, and will not be rendered insolvent by, the sale
of the Certificates to the Underwriters. The Depositor is not selling the
Certificates to the Underwriters with any intent to hinder, delay or defraud any
of the creditors of the Depositor.
(xii) The Depositor has not relied on the Underwriters for any tax,
regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Depositor
acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arm's length
between sophisticated parties represented by counsel; (ii) no fiduciary,
advisory or agency relationship between the Depositor and the Underwriters has
been created as a result of any of the transactions contemplated by this
Agreement, irrespective of whether any Underwriter has advised or is advising
the Depositor on other matters; (iii) the Underwriters' obligations to the
Depositor in respect of the offering, and the purchase and sale, of the
Certificates are set forth in this Agreement in their entirety; and (iv) it has
obtained such legal, tax, accounting and other advice as it deems appropriate
with respect to this Agreement and the transactions contemplated hereby and any
other activities undertaken in connection therewith, and it is not relying on
the Underwriters with respect to any such matters.
(xiii) The Trust Fund (other than those portions specified in the
Pooling and Servicing Agreement) will qualify as three separate real estate
mortgage investment conduits (each, a "REMIC") for federal income tax purposes
pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the
"Code"); the REMIC III Regular Certificates will constitute "regular interests"
in a REMIC; and the Class R Certificates will evidence the sole class of
"residual interests" in each related REMIC.
(xiv) There are no legal or governmental proceedings pending or, to the
knowledge of the Depositor, threatened to which the Depositor is a party or to
which any of the properties of the Depositor are subject that are required to be
described in the Prospectus or the Time of Sale Information or necessary in
order to make the statements therein in the light of the circumstances under
which they were made, not misleading and that are not so described, nor are
there any contracts or other documents to which the Depositor is a party or to
which the Depositor or any of the properties of the Depositor are subject that
are required to be described in the Prospectus.
(xv) At the Closing Date, the respective classes of Certificates shall
have been assigned ratings no lower than those set forth in Schedule I hereto by
the nationally recognized statistical rating organizations identified in
Schedule I hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Agreement, the Pooling and
Servicing Agreement and the Certificates payable by the Depositor (other than
income taxes) have been paid or will be paid at or prior to the Closing Date.
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(xvii) None of the Depositor or any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the first bona
fide offer of the Certificates is made (within the meaning of Rule 164(h)(2)
under the 0000 Xxx) will not be, an "ineligible issuer," as defined in Rule 405
under the 0000 Xxx.
(b) Each Underwriter represents and warrants to the Depositor that, as
of the date hereof and as of the Closing Date, such Underwriter has complied
with all of its obligations hereunder.
2. Purchase and Sale.
Subject to the terms and conditions herein set forth and in reliance upon
the representations and warranties herein contained, the Depositor shall sell to
the Underwriters, and each Underwriter shall, severally and not jointly,
purchase from the Depositor, at the related purchase price set forth on Schedule
I hereto, Certificates of each class thereof having an actual or notional amount
as set forth on Schedule I hereto opposite their names. There will be added to
the purchase price of the Certificates an amount equal to interest accrued
thereon pursuant to the terms thereof from [ ] to but excluding the Closing
Date.
3. Delivery and Payment.
Payment of the aggregate purchase price for, and delivery of, the
Certificates shall be made at 10:00 a.m. New York City time on [ ], which date
and time may be postponed by agreement between the Underwriters and the
Depositor (such time and date of payment and delivery, the "Closing Date").
Payment shall be made to the Depositor by the Underwriters of the purchase
prices of the Certificates as set forth in Schedule I in immediately available
Federal funds wired to such bank as may be designated by the Depositor, against
delivery of the Certificates. Delivery of the Certificates will be made in
book-entry form through the facilities of The Depository Trust Company ("DTC").
Each class of Certificates will be represented by one or more definitive global
Certificates to be deposited by or on behalf of the Depositor with DTC or the
Trustee. The Certificates will be made available for examination by the
Underwriters not later than 10:00 a.m. New York City time on the last business
day prior to the Closing Date. The closing of the transactions contemplated
hereby shall be made at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Underwriters and the Depositor.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further understood
that the Depositor, in reliance upon Policy Statement 105, has not and will not
file an offering statement pursuant to Section 352-e of the General Business Law
of the State of New York with respect to the Certificates. Each Underwriter
severally and not jointly therefore agrees that sales of the Certificates made
by such Underwriter in and from the State of New York will be made only to
institutional investors within the meaning of Policy Statement 105.
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(b) In connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors Free Writing
Prospectuses (as defined below), or portions thereof, subject to the following
conditions (to which such conditions each Underwriter agrees (provided that no
Underwriter shall be responsible for any breach of the following conditions by
any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication to any
person in connection with the initial offering of the Certificates, unless
such written communication (1) is made in reliance on Rule 134 under the
1933 Act, (2) constitutes a prospectus satisfying the requirements of Rule
430B under the 1933 Act, or (3) constitutes Time of Sale Information or a
Free Writing Prospectus that does not constitute Time of Sale Information.
The Underwriters shall not convey or deliver in connection with the
initial offering of the Certificates any "computational materials" or "ABS
term sheets" in reliance on the "Xxxxxx/PSA" no-action letters or any "ABS
informational and computational material," as defined in Item 1101(a) of
Regulation AB under the 1933 Act ("ABS Informational and Computational
Material"), in reliance upon Rules 167 and 426 under the 1933 Act.
(ii) Each Underwriter shall deliver to the Depositor, no later than
two business days prior to the date of first use thereof or such later
date as may be agreed to by the Depositor, (a) any Free Writing Prospectus
that was prepared by or on behalf of such Underwriter (an "Underwriter
Free Writing Prospectus") and that contains any "issuer information," as
defined in Rule 433(h) under the 1933 Act and footnote 271 of the
Commission's Securities Offering Reform Release No. 33-8591 ("Issuer
Information") (which the parties hereto agree includes, without
limitation, Mortgage Loan Seller Information), and (b) any Free Writing
Prospectus or portion thereof prepared by or on behalf of such Underwriter
that contains only a description of the final terms of the Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials may be delivered by an
Underwriter to the Depositor not later than the later of (A) two business
days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act or such later date as may be agreed to by the
Depositor or (B) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor
that the Free Writing Prospectuses to be furnished to the Depositor by
such Underwriter pursuant to Section 4(b)(ii) will constitute all Free
Writing Prospectuses of the type described therein that were furnished to
prospective investors by such Underwriter in connection with its offer and
sale of the Certificates.
(iv) Each Underwriter represents and warrants to the Depositor that
each Free Writing Prospectus required to be provided by it to the
Depositor pursuant to Section 4(b)(ii) did not, as of the Time of Sale,
and will not as of the Closing Date, include any untrue statement of a
material fact or omit any material fact necessary to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were made,
not misleading;
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provided however, that such Underwriter makes no representation to the
extent such misstatements or omissions were the result of any inaccurate
Issuer Information, which information was not corrected by Corrective
Information subsequently supplied by the Depositor or any Mortgage Loan
Seller to such Underwriter within a reasonable period of time prior to the
Time of Sale.
(v) The Depositor agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered by
any Underwriter to the Depositor pursuant to Section 4(b)(ii); and
(C) Any Free Writing Prospectus for which the Depositor or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a
person unaffiliated with the Depositor or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating communications.
Notwithstanding the foregoing, the Depositor shall not be required to
file (1) Issuer Information contained in any Underwriter Free Writing
Prospectus or Free Writing Prospectus of any other offering
participant other than the Depositor, if such information is included
or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Certificates, or (2) any Free Writing Prospectus or
portion thereof that contains a description of the Certificates or
the offering of the Certificates which does not reflect the final
terms thereof.
The Depositor is required to file such Free Writing Prospectuses with
the Commission in electronic format and the Underwriters shall use
reasonable efforts to provide to the Depositor such Free Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or
Microsoft Excel(R) format and not in a PDF, except to the extent that
the Depositor, in its sole discretion, waives such requirements,
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 4(b)(v) by the Depositor shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of the
Certificates shall be filed by the Depositor with the Commission
within two days of the later of the date such final terms have been
established for all classes of Certificates and the date of first
use;
(B) Any Free Writing Prospectus or portion thereof required to
be filed that contains only ABS Informational and Computational
Material shall be filed by the Depositor with the Commission not
later than the later of the due date for filing the final Prospectus
relating to the Certificates pursuant to
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Rule 424(b) under the 1933 Act or two business days after the first
use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed pursuant
to Section 4(b)(v)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Depositor for the
Free Writing Prospectus or its dissemination, be filed by the
Depositor with the Commission not later than four business days after
the Depositor becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
(vii) Each Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed by or
on behalf of such Underwriter in a manner reasonably designed to lead to
its broad, unrestricted dissemination not later than the date of the first
use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(b)(vii), each
Underwriter shall file with the Commission any Free Writing Prospectus for
which such Underwriter or any person acting on its behalf provided,
authorized or approved information that is prepared and published or
disseminated by a person unaffiliated with the Depositor or any other
offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on behalf
of the Depositor or any other offering participant, not later than four
business days after such Underwriter becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v) and
4(b)(vii), neither the Depositor nor any Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission, and no Underwriter shall be required to file any Free Writing
Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Certificates.
(x) The Depositor and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the 1933
Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in that
registration statement and other documents the depositor has filed
with the SEC for more complete information about the depositor, the
issuing trust, and this offering. You may get these documents for
free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
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 0-000-000-0000.
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(xi) The Depositor and each Underwriter agree to retain all Free
Writing Prospectuses that they have used and that are not required to be
filed pursuant to this Section 4 for a period of three years following the
initial bona fide offering of the Certificates.
(xii) (A) If the Depositor becomes aware that, as of the Time of
Sale, any Issuer Free Writing Prospectus delivered to an investor in any
Certificate contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were made,
not misleading (a "Defective Issuer Free Writing Prospectus"), the
Depositor shall notify the Underwriters of such untrue statement or
omission within one business day after discovery and the Depositor shall,
if requested by the Underwriters, prepare and deliver to the Underwriters
a Free Writing Prospectus that corrects the material misstatement or
omission in the Defective Issuer Free Writing Prospectus (such corrected
Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing
Prospectus").
(B) If any Underwriter becomes aware that, as of the Time of
Sale, any Underwriter Free Writing Prospectus delivered to an investor
in any Certificates contained any untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with the Time of
Sale Information), in light of the circumstances under which they were
made, not misleading (together with a Defective Issuer Free Writing
Prospectus, a "Defective Free Writing Prospectus"), such Underwriter
shall notify the Depositor of such untrue statement or omission within
one business day after discovery.
(C) The Underwriters shall, if requested by the Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus
prior to entering into a contract of sale with such investor;
(3) notify such investor in a prominent fashion
that the prior contract of sale with the investor has been
terminated, and of the investor's rights as a result 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
11
(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.
(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 Section 21(1) of the Financial Services
and Markets Xxx 0000 does not apply to the Depositor; and
(ii) it has complied and will comply with all applicable provisions of
the Financial Services and Markets Xxx 0000 with respect to anything done by it
in relation to the certificates in, from or otherwise involving the United
Kingdom.
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
12
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 each Underwriter 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 the 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 each Underwriter, 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 such Underwriter
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 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 each
Underwriter 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 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.
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(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 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.
(i) The Depositor shall obtain a letter from [ ], certified public
accountants, satisfactory in form and substance to the Depositor and the
Underwriters, to the effect that such accountants have performed certain
specified procedures, all of which have been agreed to by the Depositor and the
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 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:
14
(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, such Underwriter shall have received:
(i) One or more opinions, dated the Closing Date, of counsel to the
Depositor, in form and substance satisfactory to such Underwriter,
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 and the Pooling
and Servicing Agreement.
(C) Each of this Agreement and the Pooling and Servicing
Agreement has 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 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 equity or at law and (3) such other exceptions as are
reasonably acceptable to the 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 became effective, the Registration
Statement (other than any financial or statistical information included
or incorporated by reference therein, as to which no opinion need be
rendered) complied as to form
15
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.
(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 or the Pooling and
Servicing Agreement, will conflict with or result in a breach or
violation of 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, 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
16
in each case additionally state that nothing has come to such counsel's
attention that has caused it to believe that (i), in the case of counsel
to the Depositor, the Registration Statement, the Prospectus or the Time
of Sale Information, and (ii) in the case of counsel to the Underwriters,
the Prospectus or the Time of Sale Information (in each case other than
any financial statements and supporting schedules and statistical and/or
accounting information included therein, as to which no statement need be
made), in the case of the Registration Statement, as of the time it became
effective, in the case of the Prospectus, as of the date thereof or as of
the Closing Date, and as of the Time of Sale, in the case of the Time of
Sale Information, contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such statement shall be based upon conferences and telephone
conversations with representatives of the parties hereto, the Mortgage
Loan Sellers, the Master Servicers, the Special Servicer, the Certificate
Administrator, the Tax Administrator and the Trustee and such statement
may be qualified that, with limited exception, such counsel will not have
reviewed any loan documents.
Such opinion(s) may express its (their) reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion(s) may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered. Such opinion(s) may be qualified as an opinion only
on the General Corporation Law of the State of Delaware, the laws of the State
of New York and the federal law of the United States.
(c) On the Closing Date, each Underwriter shall have received a
favorable opinion, dated the Closing Date, of special tax and ERISA counsel to
the Depositor (i) regarding the qualification of each of REMIC I, REMIC II and
REMIC III as a real estate mortgage investment conduit within the meaning of
Sections 860A through 860G of the Internal Revenue Code of 1986 and (ii) to the
effect that the statements in the Base Prospectus and the Prospectus Supplement
under the headings "Material Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they constitute matters of federal law or
legal conclusions with respect thereto, while not purporting to discuss all
possible consequences of investment in the Certificates, are correct in all
material respects with respect to those consequences or matters that are
discussed therein. Such opinion(s) may express its (their) reliance as to
factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling and Servicing
Agreement and on certificates furnished by public officials. Such opinion(s) may
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto. Such opinion(s) may be
qualified as an opinion only on the federal tax and ERISA law of the United
States.
(d) The Depositor shall have delivered to each Underwriter a
certificate, dated the Closing Date, and signed by the President, a Senior Vice
President or a Vice President of the Depositor, to the effect that the signer of
such certificate has examined, or has relied upon an
17
examination conducted by appropriate persons authorized by him or her of, the
Agreement, the Prospectus, the Pooling and Servicing Agreement and various other
closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(i) the representations and warranties of the Depositor in
this Agreement and the Pooling and Servicing Agreement are true and
correct in all material respects;
(ii) the Depositor has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(iii) since the date of this Agreement, there has been no
material adverse change in the financial condition of the Depositor; and
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(e) Each Mortgage Loan Seller shall have delivered to each Underwriter
a certificate, dated the Closing Date, and signed by the President, a Senior
Vice President or a Vice President of the Mortgage Loan Seller to the effect
that:
(i) the representations and warranties of the Mortgage Loan Seller
in the respective Mortgage Loan Purchase Agreement are true and correct in
all material respects except as indicated on Schedule A thereto;
(ii) the Mortgage Loan Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its
part to be performed or satisfied under the respective Mortgage Loan
Purchase Agreement at or prior to the Closing Date; and
(iii) since the date of this Agreement, there has been no material
adverse change in the financial condition of the Mortgage Loan Seller.
(f) The Depositor and each Underwriter shall have received from [ ],
certified public accountants, a letter dated the Closing Date, in form and
substance satisfactory to such Underwriter, stating in effect that:
(i) they have performed certain specified procedures as a
result of which they have determined that certain information of an
accounting, financial or statistical nature set forth in the Prospectus
Supplement agrees with the data sheet or computer tape prepared by or on
behalf of each Mortgage Loan Seller, unless otherwise noted in such
letter; and
(ii) they have compared the data contained in the data sheet
or computer tape referred to in the immediately preceding clause (i) to
information contained in the Mortgage Files and in such other sources as
shall be specified by them,
18
and found such data and information to be in agreement, unless otherwise
noted in such letter.
(g) The Depositor shall have received the accountant's letters
specified in Section 5(i).
(h) Each Underwriter shall have received, with respect to each of the
Master Servicers, the Special Servicer, the Certificate Administrator, the Tax
Administrator and the Trustee, a favorable opinion of counsel, dated the Closing
Date, addressing the valid existence of such party under the laws of the
jurisdiction of its organization, the due authorization, execution and delivery
of the Pooling and Servicing Agreement by such party and, subject to the same
limitations as set forth in Section 6(b)(i)(C), the enforceability of the
Pooling and Servicing Agreement against such party and such other opinions as
shall be reasonably requested by such Underwriter. Such opinion may express its
reliance as to factual matters on representations and warranties made by, and on
certificates or other documents furnished by, officers and/or authorized
representatives of parties to, the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the party on behalf of which such
opinion is being rendered.
(i) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of the Depositor or a Mortgage Loan Seller (including any
of the Mortgage Loans) which such Underwriter concludes, in the reasonable
judgment of such Underwriter, materially impairs the investment quality of the
Certificates so as to make it impractical or inadvisable to proceed with the
public offering or the delivery of the Certificates as contemplated by the Time
of Sale Information (excluding the Corrective Information) and the Prospectus.
(j) The Certificates shall have been assigned ratings by the Rating
Agencies (as defined in the Pooling and Servicing Agreement) no less than those
set forth on Schedule I and such ratings shall not have been withdrawn,
suspended or qualified.
(k) The Underwriters shall have received copies of any opinions of
counsel to the Depositor supplied to the Rating Agencies relating to certain
matters with respect to the Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriters or accompanied by reliance
letters addressed to the Underwriters.
(l) The Depositor shall have furnished to the Underwriters such further
opinions, information, certificates and documents as the Underwriters may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident hereto
shall be in all material respects reasonably satisfactory in form and substance
to the Underwriters and their counsel.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter
(severally and not jointly), its directors and officers and each person, if any,
who controls such Underwriter within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934
19
Act, from and against any and all expenses, losses, claims, damages and other
liabilities (including without limitation the reasonable costs of investigation
and legal defense) (the "Liabilities") caused by (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, not
misleading, or any untrue statement or alleged untrue statement of any material
fact contained in the Prospectus or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact contained in any
Issuer Free Writing Prospectus or any Issuer Information contained in any
Underwriter Free Writing Prospectus, or the omission or alleged omission to
state a material fact necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by the Depositor or
any Mortgage Loan Seller to any Underwriter within a reasonable period of time
prior to the Time of Sale, or (iii) any breach of the representation and
warranty in Section 1(a)(xviii); provided that, in the case of clauses (i) and
(ii) above, insofar as the Liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission with respect to any
information in the Prospectus as to which any Underwriter has agreed to
indemnify the Depositor pursuant to Section 7(b), the Depositor shall have no
obligation to so indemnify and hold harmless; and provided, further, that the
Depositor shall have no obligation to so indemnify and hold harmless to the
extent that the Liabilities arise out of or are based upon an untrue statement
or omission or an alleged untrue statement or omission with respect to the
Mortgage Loan Seller Information (including without limitation untrue statements
or alleged untrue statements or omissions or alleged untrue omissions in the
portions of the Prospectus Supplement and any free writing prospectus under the
heading "Yield, Prepayment and Maturity Considerations" that arise out of or are
based upon untrue statements or alleged untrue statements or omissions or
alleged omissions in the Mortgage Loan Seller Information).
(b) Each Underwriter shall, severally and not jointly, indemnify and
hold harmless the Depositor, its directors and its officers who signed the
Registration Statement and each person, if any, who controls the Depositor
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all Liabilities as incurred, but only with respect to
Liabilities caused by any (i) untrue statements or alleged untrue statements of
a material fact, or omissions or alleged omissions to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in the Underwriter Information and
(ii) untrue statements or alleged untrue statements of a material fact, in any
Underwriter Free Writing Prospectus prepared by or on behalf of such Underwriter
or omission or alleged omission to state in such Underwriter Free Writing
Prospectus a material fact necessary in order to make the statements therein
(when read in conjunction with the Time of Sale Information), in the light of
the circumstances under which they were made, not misleading; provided, that no
Underwriter shall be obligated to so indemnify and hold harmless (A) to the
extent such Liabilities are caused by a misstatement or omission resulting from
an error or omission in the Issuer Information which was not corrected by
Corrective Information subsequently supplied by the Depositor or any Mortgage
Loan Seller to any Underwriter within a reasonable period of time prior to the
Time of Sale or (B) with respect to information that is also contained in the
Time of Sale Information.
20
(c) Each indemnified party shall give notice in writing as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than under subsection (a) or (b) of
this Section 7. Upon request of the indemnified party, the indemnifying party
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding as incurred. If any action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party may participate at its own expense in the
defense of any such action. The indemnifying party may elect to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from the indemnified party. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have agreed to
the retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to designate within a reasonable
period of time counsel reasonably satisfactory to the indemnified party (in
which case the fees and expenses shall be paid as incurred by the indemnifying
party). In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. An indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, which consent shall not be unreasonably withheld. However,
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party shall indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel for which the indemnifying party is obligated under this subsection,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. If an indemnifying party assumes the defense of any proceeding, it
shall be entitled to settle such proceeding with the consent of the indemnified
party or, if such settlement provides for an unconditional release of the
indemnified party, without any admission of fault, culpability or failure to act
or on behalf of the indemnified party, in connection with all matters relating
to the proceeding that have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is due in
accordance with its terms but is for any reason unavailable to an indemnified
party under subsection (a) or (b), or insufficient to hold harmless an
indemnified party, in respect of any losses, claims,
21
damages or liabilities under subsection (a) or (b) on grounds of public policy
or otherwise, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Depositor on the one hand and the applicable Underwriter on the other
from the offer and sale of the Certificates pursuant hereto or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and of such Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or other
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Depositor on the one hand, and such
Underwriter on the other, in connection with the offering of the Certificates
underwritten by such Underwriter shall be deemed to be in the same respective
proportions that the total proceeds from the sale of the Certificates
underwritten by such Underwriter (before deducting expenses) received by the
Depositor and the amount by which (i) the total price received by such
Underwriter with respect to the initial resale to investors in the Certificates
acquired by such Underwriter exceeds (ii) the total underwriting discounts and
commissions received by such Underwriter (or, if no such Underwriter discounts
and commissions are payable hereunder, the amount of the other fees payable to
such Underwriter in connection with the offering of the Certificates), bear to
the aggregate offering price of the Certificates. The relative fault of the
Depositor on the one hand and of such Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Depositor or by such
Underwriter, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
subsection (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or other liabilities referred to in this
Section 7 shall be deemed to include any legal fees and disbursements or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. If any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne by
the indemnifying party hereunder, the party which received such payment shall
promptly refund the amount so paid to the party which made such payment.
Notwithstanding the provisions of subsection (d) above or this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which (i) the total underwriting discounts and commissions and other
fees received by such Underwriter in connection with the offering of the
Certificates exceeds (ii) the amount of damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 7 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
22
(f) The indemnity and contribution agreements contained in this Section
7 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Depositor, an
Underwriter, any of their respective directors or officers, or any person
controlling the Depositor or such Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, and (iii) acceptance
of and payment for any of the Certificates.
(g) The Underwriters' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the respective amount of
Certificates they have purchased hereunder, and not joint.
(h) Each Underwriter (the "Indemnifying Underwriter") will indemnify
and hold harmless the other Underwriters and each person, if any, who controls
such Underwriter within the meaning of either the 1933 Act or the 1934 Act (the
"Non-Indemnifying Underwriter") from and against any and all losses, claims,
damages or liabilities, joint or several, to which the Non-Indemnifying
Underwriter becomes subject under the 1933 Act, the 1934 Act or other federal or
state statutory law or regulation, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of a
material fact or the omission or alleged omission (when read in conjunction with
the Time of Sale Information) to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they were
made, not misleading at the Time of Sale, contained in any Underwriter Free
Writing Prospectus prepared by, or on behalf of, or used or referred to by, such
Indemnifying Underwriter or (ii) the failure of such Indemnifying Underwriter,
or any member of its selling group, to comply with any provision of Sections
4(b) or 9, and agrees to reimburse such Non-Indemnifying Underwriter, as
incurred for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action, except to the extent such losses, claims, damages or
liabilities are caused by a misstatement or omission resulting from an error or
omission in the Issuer Information which was not corrected by Corrective
Information subsequently supplied by the Depositor or any Mortgage Loan Seller
to any Underwriter within a reasonable period of time prior to the Time of Sale.
This agreement will be in addition to any liability that any Underwriter may
otherwise have.
8. Representations and Warranties to Survive Delivery.
All representations and warranties of the Depositor contained in this
Agreement shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
in respect of such Underwriter, and shall survive delivery of the Certificates
to the Underwriters.
9. Defaulting Underwriter.
If, on the Closing Date, any of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date, and
the aggregate principal amount of Certificates which such defaulting Underwriter
agreed but failed or refused to
23
purchase is not more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date, the other Underwriter shall be
obligated to purchase the Certificates which such defaulting Underwriter agreed
but failed or refused to purchase on such date; provided that in no event shall
the principal amount of Certificates that any Underwriter has agreed to purchase
pursuant to Section 3 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Certificates, without the
written consent of such Underwriter, and provided further that no Underwriter
shall be obligated under this Section 9 to purchase Certificates of a Class that
it is not otherwise obligated to purchase under this Agreement.
If, on the Closing Date, one of the Underwriters shall fail or refuse to
purchase Certificates that it has agreed to purchase hereunder on such date and
the aggregate principal amount of Certificates with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Certificates to be purchased on such date and arrangements satisfactory to the
non-defaulting Underwriter and the Depositor for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or of the Depositor. In any such case either such non-defaulting Underwriter or
the Depositor shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. Termination of Agreement.
(a) Any Underwriter may terminate its obligations under this Agreement,
by notice to the Depositor, at any time at or prior to the Closing Date if the
sale of the Certificates provided for herein is not consummated because of any
failure or refusal on the part of the Depositor to comply in all material
respects with the terms, or to fulfill in all material respects any of the
conditions of, this Agreement, or if for any reason the Depositor shall be
unable to perform in all material respects its obligations under this Agreement.
(b) Any Underwriter may terminate its obligations under this Agreement
in the absolute discretion of such Underwriter, by notice given to the
Depositor, if (A) after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Depositor or its affiliates shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or State of
New York authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis, or any major disruption of settlement or clearance of securities in the
United States that, in the judgment of such Underwriter, is material and adverse
and (B) in the case of any of the events specified in clauses (A)(i) through
(iv) above, such event singly or together with any other such event, makes it,
in
24
the judgment of such Underwriter, impracticable to market the Certificates on
the terms and in the manner contemplated in the Time of Sale Information and the
Prospectus.
(c) If any Underwriter terminates its obligations under this Agreement
in accordance with Section 10(a), the Depositor shall reimburse such Underwriter
for all reasonable out-of pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by such
Underwriter in connection with the proposed purchase and sale of the
Certificates.
11. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed duly given if sent by facsimile or delivered by courier, in
either case with appropriate confirmation of receipt. Notices to the Depositor,
shall be directed to [ ]; and as to any party, to such other address as may
hereafter be furnished by such party to the others in writing.
12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person or entity, other than the Underwriters and the Depositor and
their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their respective successors, heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Depositor and their respective
successors, and said controlling persons and officers and directors and their
respective successors, heirs and legal representatives, and for the benefit of
no other person or entity. No purchaser of Certificates from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
13. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State.
14. Entire Agreement.
This Agreement, together with any contemporaneous written agreements and
any prior written agreements (to the extent not superseded by this Agreement)
that relate to the offering of the Certificates, represents the entire agreement
between the Depositor, on the one hand, and the Underwriters, on the other, with
respect to the preparation of the Prospectus, and the conduct of the offering,
and the purchase and sale of the Certificates.
25
15. Miscellaneous.
This Agreement supersedes all prior or contemporaneous agreements and
understandings between the parties hereto relating to the subject matter hereof.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such amendment, waiver, discharge or termination is sought. This Agreement may
be signed in any number of duplicate originals, each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Depositor a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Depositor in accordance with its
terms.
Very truly yours,
[ ]
By:
----------------------------
Name:
Title:
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
[ ]
By:
-------------------------------
Name:
Title:
[ address ]
[ ]
By:
-------------------------------
Name:
Title:
[ address ]
28
ANNEX A
The First Page of the Depositor's Free Writing Prospectus dated [ ]
29
ANNEX B
The First Page of each additional Free Writing Prospectus of the
Depositor
30
ANNEX C
Pricing Information Annex
31
SCHEDULE I
Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP21, Class A-1, Class X-0, Xxxxx X-0,
Class A-AB, Class A-4, Class A-M and Class A-J.
Amount of Certificates Class of Certificates
Underwriters to be Purchased to be Purchased
------------ --------------- ---------------
[ ] $[ ] A-1
[ ] $[ ] A-1
[ ] $[ ] A-2
[ ] $[ ] A-2
[ ] $[ ] A-3
[ ] $[ ] A-3
[ ] $[ ] A-AB
[ ] $[ ] A-AB
[ ] $[ ] A-4
[ ] $[ ] A-4
[ ] $[ ] A-M
[ ] $[ ] A-M
[ ] $[ ] A-J
[ ] $[ ] A-J
SCHEDULE I (CONTINUED)
Class Initial Aggregate Approximate Initial Purchase Rating(3)
Designation Principal Amount of Class(1) Pass-Through Rate Price(2) Moody's/S&P
----------- ---------------------------- ----------------- -------- -----------
[ ] $[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
[ ] [ ]% [ ]%
[ ] $[ ]
--------------
(1) Subject to a variance of plus or minus 5.0%
(2) Expressed as a percentage of the aggregate stated or notional amount, as
applicable, of the relevant class of Certificates to be purchased. The
purchase price for each class of the Certificates shown is net accrued
interest. The purchase price to be paid will include accrued interest at the
initial Pass-Through Rate therefor on the aggregate stated or notional
amount, as applicable, thereof to be purchased from the Cut-off Date to but
not including the Closing Date. The purchase price does not reflect any
underwriting discount.
(3) By each of Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P").
